Wenkart, Thomas Richard v Abignano, Gennaro & Anor [1998] FCA 162

Wenkart, Thomas Richard v Abignano, Gennaro & Anor [1998] FCA 162

Although there was no operative stay order and the respondents had obtained garnishment notices and a writ of levy of property, paragraph 11 of the Supreme Court judgment required Mr Pitman to give an undertaking to the Supreme Court before payment by Dr Wenkart could be required. No such undertaking had been given when the bankruptcy notice was issued. The respondents therefore were not creditors between whom and the full fruition of their claim there stood only a process of the law uncompleted, and the bankruptcy notice was set aside.

Jurisdiction
Australia
Judgment Date
05 March 1998
Procedural Posture
Application to Set Aside a Bankruptcy Notice, or Alternatively for an Extension of Time Within Which to Comply With the Notice / Federal Court Reasons for Judgment and Order
Outcome
Bankruptcy notice set aside.
Legal Topics
['bankruptcy Notice' 'final Judgment or Final Order' 'stay of Execution' 'immediate Execution' 'undertaking to the Court' 'assignment of Judgment']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'final Judgment or Final Order' 'stay of Execution' 'immediate Execution' 'undertaking to the Court' 'assignment of Judgment']

Case Brief

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Procedural Posture

Application to Set Aside a Bankruptcy Notice, or Alternatively for an Extension of Time Within Which to Comply With the Notice / Federal Court Reasons for Judgment and Order

Legal Issues

  1. 1 ['Whether the respondents were entitled, at the date of issue of the bankruptcy notice, to enforce paragraph 11 of the Supreme Court judgment against Dr Wenkart.' 'Whether the absence of a formal undertaking by Mr Pitman to the Supreme Court meant that payment by Dr Wenkart could not yet be required.' 'Whether the bankruptcy notice should be set aside because the creditors were not in a position to issue immediate execution of the judgment.']

Ratio Decidendi

Although there was no operative stay order and the respondents had obtained garnishment notices and a writ of levy of property, paragraph 11 of the Supreme Court judgment required Mr Pitman to give an undertaking to the Supreme Court before payment by Dr Wenkart could be required. No such undertaking had been given when the bankruptcy notice was issued. The respondents therefore were not creditors between whom and the full fruition of their claim there stood only a process of the law uncompleted, and the bankruptcy notice was set aside.

Court Disposition

Bankruptcy notice set aside.

Orders

  • ['The bankruptcy notice be set aside.']