Corporation of the City of Adelaide v Cosenza [2024] FCA 852

Federal Court of Australia

Corporation of the City of Adelaide v Cosenza [2024] FCA 852 File number(s): SAD 138 of 2023

Judgment of: MEAGHER J

Date of judgment: 2 August 2024

Catchwords: BANKRUPTCY - Creditor's petition – Application for declaratory relief in relation to service of creditor's petition – Whether creditor's petition has been validly served – Where the validity of the affidavit of service is contested – Where respondent filed a notice of appearance, affidavit and appeared in Court – Respondent deemed to have been served – Application dismissed PRACTICE AND PROCEDURE – Application seeking to restrain the applicant's solicitors from acting – Where the applicant's solicitors are parties to Magistrates Court proceeding commenced by the respondent – Where no fiduciary duty or duties of confidence owed to the respondent – Whether a fair-minded reasonably informed member of the public might conclude that the proper administration of justice requires that the solicitors be restrained from acting – Whether the basis for disqualification is exceptional – Application dismissed

Legislation: Bankruptcy Act 1966 (Cth) s 52(2) Electronic Transactions Act 1999 (Cth) s 9 Bankruptcy Regulations 2021 (Cth) s 102(3) Federal Court (Bankruptcy) Rules 2016 (Cth) r 4.05(a) Federal Court Rules 2011 (Cth) rr 10.11, 13.01

Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Cain v Whyte (1933) 48 CLR 639 Cosenza v Corporation of the City of Adelaide [2023] SASCA 142 CSR Ltd (t/as CSR Construction Materials) v Barillaro (2001) 184 ALR 308 Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065 DMH20 v Minister for Home Affairs (2023) 296 FCR 256 Kallinicos v Hunt (2005) 64 NSWLR 561 Mitchell v Burrell [2008] NSWSC 772 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107