Costagliola v Autore [2025] FCA 35

Costagliola v Autore [2025] FCA 35

The application for freezing orders was dismissed because the applicant failed to demonstrate that the trustee in bankruptcy had a good arguable case against Nerotua under s 139D or s 139E of the Bankruptcy Act 1966 (Cth), as required for such orders. Key elements were not satisfied: there was no persuasive evidence Mr Autore had not been properly remunerated (either directly or via Codimark); no clear benefit was derived by him from Nerotua's property; and there was no sound evidentiary basis for the quantum or value of personal services or for the respondent's net worth. Even if such a case existed, the balance of convenience weighed against making the freezing order, given the...

Parties
Applicant: Giuseppe Costagliola; Second Respondent: Nerotua Pty Ltd
Jurisdiction
Australia
Judgment Date
03 February 2025
Procedural Posture
Application for Freezing Order / Judgment
Outcome
Application dismissed with costs
Legal Topics
Freezing Orders, Third Party Mareva Orders, Trustee's Remedies Under Bankruptcy Act, Personal Services and Property Vesting, Balance of Convenience
Bankruptcy and Insolvency Commercial Law Freezing Orders Third Party Mareva Orders Trustee's Remedies Under Bankruptcy Act Personal Services and Property Vesting Balance of Convenience

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Parties

Giuseppe Costagliola

Applicant

Nerotua Pty Ltd

Second Respondent

Procedural Posture

Application for Freezing Order / Judgment

Legal Issues

  1. 1 Whether freezing orders should be granted against Nerotua Pty Ltd to restrain sale of property in aid of a prospective cause of action held by the trustee in bankruptcy
  2. 2 Whether the trustee in bankruptcy has a good arguable case against Nerotua under ss 139D and 139E of the Bankruptcy Act 1966 (Cth)
  3. 3 Whether the procedural and discretionary requirements for a freezing order are satisfied

Ratio Decidendi

The application for freezing orders was dismissed because the applicant failed to demonstrate that the trustee in bankruptcy had a good arguable case against Nerotua under s 139D or s 139E of the Bankruptcy Act 1966 (Cth), as required for such orders. Key elements were not satisfied: there was no persuasive evidence Mr Autore had not been properly remunerated (either directly or via Codimark); no clear benefit was derived by him from Nerotua's property; and there was no sound evidentiary basis for the quantum or value of personal services or for the respondent's net worth. Even if such a case existed, the balance of convenience weighed against making the freezing order, given the...

Court Disposition

Application dismissed with costs

Orders

  • A non-publication order was made prohibiting publication/disclosure of the confidential affidavit of Alessio Autore dated 14 January 2025 except as specified.
  • Confidential affidavit deemed a confidential document for purposes of Federal Court Rules 2011 (Cth).