Wyse Accounting Pty Ltd v Rubino (as executor of the estate of the late Alfio Rubino) [2019] FCA 1417

Wyse Accounting Pty Ltd v Rubino (as executor of the estate of the late Alfio Rubino) [2019] FCA 1417

The applicants failed to establish any proper basis for staying delivery of judgment in the bankruptcy proceeding because the matters they sought to raise either had been, or could have been, raised in the bankruptcy proceeding, the Supreme Court proceeding, or an appeal from White J's judgment. The originating application was an abuse of process because its effect and substantial purpose were to collaterally attack White J's judgment and to collaterally challenge or delay the bankruptcy proceeding. In any event, the Court had no apparent jurisdiction to grant the relief sought and no reasonable cause of action was disclosed.

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Application for Declarations and Orders Relating to a Judgment the Subject of Bankruptcy Proceedings; Interlocutory Applications in Bankruptcy, Practice and Procedure / Applicants' Interlocutory Application to Stay Delivery of Judgment in Bankruptcy Proceedings and Fourth Respondent's Interlocutory Application for Summary Dismissal
Outcome
Applicants' interlocutory application dismissed; originating application summarily dismissed; applicants ordered to pay the fourth respondent's costs.
Legal Topics
['abuse of Process' 'collateral Attack on Judgment' 'collateral Challenge to Bankruptcy Proceedings' 'summary Dismissal' 'going Behind a Judgment' 'stay of Delivery of Judgment' 'federal Court Jurisdiction']
['bankruptcy' 'practice and Procedure' 'corporations and Corporate Insolvency'] ['abuse of Process' 'collateral Attack on Judgment' 'collateral Challenge to Bankruptcy Proceedings' 'summary Dismissal' 'going Behind a Judgment' 'stay of Delivery of Judgment' 'federal Court Jurisdiction']

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Procedural Posture

Application for Declarations and Orders Relating to a Judgment the Subject of Bankruptcy Proceedings; Interlocutory Applications in Bankruptcy, Practice and Procedure / Applicants' Interlocutory Application to Stay Delivery of Judgment in Bankruptcy Proceedings and Fourth Respondent's Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether delivery of judgment in bankruptcy proceedings NSD 1245 of 2018 should be stayed pending determination of this proceeding.' 'Whether the proceeding was a collateral attack on the judgment of White J in Rubino v Pineview Property Holdings Pty Ltd & Ors [2016] NSWSC 904.' 'Whether the proceeding was a collateral challenge to, or attempt to delay, the separate bankruptcy proceeding.' 'Whether the Federal Court had jurisdiction to grant the declarations and orders sought, including a declaration that a State Supreme Court judgment was not a proper judgment for bankruptcy or winding up purposes.' 'Whether the originating application disclosed a reasonable cause of action or was an abuse of process warranting summary dismissal.']

Ratio Decidendi

The applicants failed to establish any proper basis for staying delivery of judgment in the bankruptcy proceeding because the matters they sought to raise either had been, or could have been, raised in the bankruptcy proceeding, the Supreme Court proceeding, or an appeal from White J's judgment. The originating application was an abuse of process because its effect and substantial purpose were to collaterally attack White J's judgment and to collaterally challenge or delay the bankruptcy proceeding. In any event, the Court had no apparent jurisdiction to grant the relief sought and no reasonable cause of action was disclosed.

Court Disposition

Applicants' interlocutory application dismissed; originating application summarily dismissed; applicants ordered to pay the fourth respondent's costs.

Orders

  • ["The applicants' interlocutory application for an order staying the delivery of judgment in bankruptcy proceedings NSD 1245 of 2018 be dismissed." 'The originating application filed on 14 March 2019 be dismissed.' "The applicants pay the fourth respondent's costs."]