Ippolito v Cesco, in the matter of Cesco [2021] FCA 656

Ippolito v Cesco, in the matter of Cesco [2021] FCA 656

The Court was satisfied that the statutory proof required by s 52(1) of the Bankruptcy Act 1966 (Cth) was established. The Instalment Orders were made only after the Bankruptcy Notice had been served, the act of bankruptcy had occurred and the creditor's petition had been presented, so they did not prevent the making of a sequestration order. Although Ms Hall's support was sufficient to meet the instalments on the Judgment Debt, Mr Cesco failed to prove he could pay all debts because there was no evidence of how he would meet Mr Ippolito's costs liability once assessed. The alleged collateral purposes were not established; seeking bankruptcy and the consequential ability to claim under...

Jurisdiction
Australia
Judgment Date
18 June 2021
Procedural Posture
Creditor's Petition Seeking a Sequestration Order Under the Bankruptcy Act 1966 (cth) / Hearing of Creditor's Petition and Respondent's Grounds of Opposition
Outcome
Creditor's petition granted; sequestration order made against the estate of Michael Cesco.
Legal Topics
["creditor's Petition" 'sequestration Order' 'debtor Solvency' 'instalment Orders' 'abuse of Process' 'collateral Purpose' "home Owners' Warranty Insurance"]
['bankruptcy and Insolvency' 'civil Procedure' 'home Building Insurance'] ["creditor's Petition" 'sequestration Order' 'debtor Solvency' 'instalment Orders' 'abuse of Process' 'collateral Purpose' "home Owners' Warranty Insurance"]

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Procedural Posture

Creditor's Petition Seeking a Sequestration Order Under the Bankruptcy Act 1966 (cth) / Hearing of Creditor's Petition and Respondent's Grounds of Opposition

Legal Issues

  1. 1 ['Whether Mr Cesco was able to pay his debts within s 52(2)(a) of the Bankruptcy Act 1966 (Cth).' "Whether the Instalment Orders made after service of the Bankruptcy Notice, commission of the act of bankruptcy and presentation of the creditor's petition prevented the making of a sequestration order." "Whether the creditor's petition was brought or maintained for an improper collateral purpose amounting to an abuse of process or other sufficient cause under s 52(2)(b) of the Bankruptcy Act 1966 (Cth)."]

Ratio Decidendi

The Court was satisfied that the statutory proof required by s 52(1) of the Bankruptcy Act 1966 (Cth) was established. The Instalment Orders were made only after the Bankruptcy Notice had been served, the act of bankruptcy had occurred and the creditor's petition had been presented, so they did not prevent the making of a sequestration order. Although Ms Hall's support was sufficient to meet the instalments on the Judgment Debt, Mr Cesco failed to prove he could pay all debts because there was no evidence of how he would meet Mr Ippolito's costs liability once assessed. The alleged collateral purposes were not established; seeking bankruptcy and the consequential ability to claim under...

Court Disposition

Creditor's petition granted; sequestration order made against the estate of Michael Cesco.

Orders

  • ['A sequestration order under the Bankruptcy Act 1966 (Cth) (Act) be made against the estate of Michael Cesco.' "The applicant's costs be taxed and paid from the bankrupt estate of Michael Cesco in accordance with the Act." 'The date of bankruptcy is 6 February 2021.' 'A consent to act as trustee under s 156A of the...