Costagliola v Autore [2025] FCA 35

Federal Court of Australia

Costagliola v Autore [2025] FCA 35 File number(s): NSD 1457 of 2024

Judgment of: WIGNEY J

Date of judgment: 3 February 2025

Catchwords: BANKRUPTCY AND INSOLVENCY – application for freezing order to restrain sale of property – where applicant obtained judgment against the respondent in the District Court – where respondent subsequently went bankrupt and freezing orders were sought against companies allegedly related to the respondent – where orders sought were ambitious and novel as applicant had no personal cause of action or favourable judgment against the related companies – where applicant argued that trustee in bankruptcy had a good arguable case against the companies under Bankruptcy Act 1966 (Cth) ss 139D and 139E – where applicant contends that if the trustee were successful under those provisions, the bankrupt estate would be divisible amongst creditors including the applicant – elements of ss 139D and 139E not satisfied – failure to demonstrate good arguable case –– balance of convenience weighs against making order because of weak arguable case and because trustee unlikely to commence proceedings where no assets or significant liabilities in the bankrupt estate – application dismissed

Legislation: Bankruptcy Act 1966 (Cth) ss 5, 5F, 139CA, 139D, 139E, Sch 2 Bankruptcy Amendment Bill 1987 (Cth) Corporations Act 2001 (Cth) ss 205B, 205D Federal Court of Australia Act 1976 (Cth) ss 23, 37AF, 37AG Federal Court Rules 2011 (Cth) rr 7.31, 7.32, 7.33, 7.34, 7.35, 7.36

Cases cited: Aravanis (Trustee) v Kapp, in the matter of the Bankrupt Estate of Kapp [2023] FCA 702 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064 Deputy Commissioner of Taxation v Huang (2021) 273 CLR 429; [2021] HCA 43 Epp v Levy [2001] NSWSC 482 F Hoffman-La Roche AG v Sandoz Pty Ltd [2018] FCA 874 Frigo v Culhaci [1998] NSWCA 88 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 102; (2013) 305 ALR 363 In the matter of HPack Investments Pty Ltd [2020] NSWSC 1638 Jackson v Stirling Industries Ltd (1987) 162 CLR 612 Samsung Electronics Co. Ltd v Apple Inc. [2011] FCAFC 156; (2011) 286 ALR 257 Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 Skyworks v 32 Drummoyne Road [2017] NSWSC 343 Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 Wentworth v Wentworth (unreported, Supreme Court of New South Wales 12 June 1997)