Ippolito v Cesco, in the matter of Cesco [2021] FCA 656

Federal Court of Australia

Ippolito v Cesco, in the matter of Cesco [2021] FCA 656 File number: NSD 85 of 2021

Judgment of: MARKOVIC J

Date of judgment: 18 June 2021

Catchwords: BANKRUPTCY AND INSOLVENCY – creditor's petition – whether debtor is solvent – whether presentation of creditor's petition is an abuse of process – where debtor obtained orders from the Supreme Court of New South Wales for payment of judgment debt by instalments following presentation of creditor's petition – where debtor's mother prepared to provide financial assistance to debtor to meet instalment payments for judgment debt – where debtor liable to pay applicant's costs once assessed – where no evidence that debtor can meet liability for costs order once assessed – debtor not solvent – no improper collateral purpose in presenting and proceeding on creditor's petition – sequestration order made

Legislation: Bankruptcy Act 1966 (Cth) ss 5, 40, 43, 44, 52 Coronavirus Economic Response Package Omnibus Act 2020 (Cth) Sch 12 Federal Court (Bankruptcy) Rules 2016 (Cth) rr 4.04, 4.05 Civil Procedure Act 2005 (NSW) s 107 Home Building Act 1989 (NSW) s 92 Uniform Civil Procedure Rules 2005 (NSW) Pt 37

Cases cited: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 Ippolito v Cesco [2020] NSWSC 561 Killoran v Duncan [1999] FCA 1574 McInerney, in the matter of Ghougassian v Ghougassian [2020] FCA 1230 Re Padagas, Ex parte Carrier Air Conditioning Pty Ltd (1977) 30 FLR 170 Re Sanders [2003] FCA 1079 Re Schlekoff (1989) 22 FCR 407 Sandell v Porter (1966) 115 CLR 666 Slack v Bottoms English Solicitors [2002] FCA 1445 Williams v Spautz (1992) 174 CLR 509