Wenkart, Thomas Richard v Abignano, Gennaro & Anor [1998] FCA 1035

Wenkart, Thomas Richard v Abignano, Gennaro & Anor [1998] FCA 1035

The Bankruptcy Notice should not be set aside because the judgment against Dr Wenkart was an effective final judgment or order for payment of money, the rights conferred by it were property capable of assignment to the Respondents, the required undertaking was one for Mr Pitman and had been given before the notice issued, the deed of assignment did not release Dr Wenkart, and omission of reference to the undertaking did not make the notice misleading or invalid. Time for compliance should nevertheless be extended because bona fide and non-trivial appeals had been argued and the Respondents' own appeal, if successful, would result in the judgment against Dr Wenkart being set aside.

Jurisdiction
Australia
Judgment Date
28 August 1998
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice Number NN 436/1998, or Alternatively to Extend Time for Compliance
Outcome
Application to set aside Bankruptcy Notice number NN 436/1998 dismissed; time for compliance extended; no order as to costs.
Legal Topics
['bankruptcy Notice' 'assignment of Judgment Debt' 'extension of Time for Compliance With Bankruptcy Notice' 'going Behind Judgment' 'construction of Deed of Assignment']
['bankruptcy' 'contract'] ['bankruptcy Notice' 'assignment of Judgment Debt' 'extension of Time for Compliance With Bankruptcy Notice' 'going Behind Judgment' 'construction of Deed of Assignment']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice Number NN 436/1998, or Alternatively to Extend Time for Compliance

Legal Issues

  1. 1 ['Whether Bankruptcy Notice number NN 436/1998 should be set aside because the Respondents were not entitled to enforce the judgment assigned by Mr Pitman.' 'Whether the judgment rights assigned to the Respondents were property capable of assignment although the judgment was conditioned on an undertaking by Mr Pitman.' 'Whether the undertaking required by the judgment could only be given by Mr Pitman and whether it was effective.' 'Whether the release of Mr Pitman under the deed of assignment released Dr Wenkart from liability under the judgment.' 'Whether the Bankruptcy Notice was defective because it did not refer to the giving of the undertaking.' 'Whether time for compliance with the Bankruptcy Notice should be extended pending judgment in the New South Wales Court of Appeal appeals.']

Ratio Decidendi

The Bankruptcy Notice should not be set aside because the judgment against Dr Wenkart was an effective final judgment or order for payment of money, the rights conferred by it were property capable of assignment to the Respondents, the required undertaking was one for Mr Pitman and had been given before the notice issued, the deed of assignment did not release Dr Wenkart, and omission of reference to the undertaking did not make the notice misleading or invalid. Time for compliance should nevertheless be extended because bona fide and non-trivial appeals had been argued and the Respondents' own appeal, if successful, would result in the judgment against Dr Wenkart being set aside.

Court Disposition

Application to set aside Bankruptcy Notice number NN 436/1998 dismissed; time for compliance extended; no order as to costs.

Orders

  • ['The application to set aside Bankruptcy Notice number NN 436/1998 be dismissed.' 'The time for compliance with the Bankruptcy Notice be extended until 30 days from the delivery of the judgment of the New South Wales Court of Appeal in appeal numbers 40673 of 1997 and 40718 of 1997.' 'There be no order as to costs.']