Re Lisciandro, Cono; Ex parte Lisciandro, Cono v Official Trustee in Bankruptcy [1995] FCA 716

Re Lisciandro, Cono; Ex parte Lisciandro, Cono v Official Trustee in Bankruptcy [1995] FCA 716

Although Mr Radford's conduct in procuring Mr Lisciandro's signature was misleading and deceptive and Mr Lisciandro was in a position of special disadvantage, Alminco had no knowledge of circumstances sufficient to put it on enquiry, Mr Radford was not acting as Alminco's agent or on its behalf for the purposes of Trade Practices Act 1974 s 84(2), and the document was operative as a guarantee because it made Mr Lisciandro liable upon TAG Industries Pty Ltd's default. The Official Trustee was therefore right to admit Alminco's claim as a debt.

Jurisdiction
Australia
Judgment Date
06 September 1995
Procedural Posture
Bankruptcy Application for Review of Trustee's Admission of Proof of Debt / Application Under Bankruptcy Act 1966 S 99 Dismissed
Outcome
Application dismissed; Alminco's admitted proof of debt remained admitted.
Legal Topics
['review of Trustee Decision' 'proof of Debt' 'guarantee' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'agency' 'attribution of Conduct to Corporation']
['bankruptcy' 'trade Practices' 'equity' 'contract Law'] ['review of Trustee Decision' 'proof of Debt' 'guarantee' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'agency' 'attribution of Conduct to Corporation']

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Procedural Posture

Bankruptcy Application for Review of Trustee's Admission of Proof of Debt / Application Under Bankruptcy Act 1966 S 99 Dismissed

Legal Issues

  1. 1 ["Whether Alminco's proof of debt based on a guarantee signed by Mr Lisciandro was wrongly admitted by the Official Trustee" 'Whether Mr Lisciandro was induced to sign the guarantee by misleading and deceptive conduct' "Whether Alminco was affected by Mr Radford's conduct because it had notice of the circumstances, because Mr Radford acted as its agent, or because Trade Practices Act 1974 s 84(2) attributed his conduct to Alminco" 'Whether the wording of the guarantee was operative despite omitted words']

Ratio Decidendi

Although Mr Radford's conduct in procuring Mr Lisciandro's signature was misleading and deceptive and Mr Lisciandro was in a position of special disadvantage, Alminco had no knowledge of circumstances sufficient to put it on enquiry, Mr Radford was not acting as Alminco's agent or on its behalf for the purposes of Trade Practices Act 1974 s 84(2), and the document was operative as a guarantee because it made Mr Lisciandro liable upon TAG Industries Pty Ltd's default. The Official Trustee was therefore right to admit Alminco's claim as a debt.

Court Disposition

Application dismissed; Alminco's admitted proof of debt remained admitted.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of Alminco Pty Ltd of and incidental to the application including reserved costs.' 'Liberty to the Official Trustee to apply with respect to any costs incurred by the Trustee.']