ABL Nominees Pty Ltd v Trinick (Administrators) (No 2)

FEDERAL COURT OF AUSTRALIA

ABL Nominees Pty Ltd v Trinick (Administrators) (No 2) [2018] FCA 204

File number:

SAD 379 of 2015

Judge:

BESANKO J

Date of judgment:

2 March 2018

Catchwords:

COSTS – whether the first respondent ought to pay the applicants’ costs of the proceeding, fixed in a lump sum amount – whether the first respondent ought to pay the trustee of the bankrupt estate any funds withdrawn from the estate of the second respondent – whether the first respondent ought to pay the applicants’ costs of the interim application

Legislation:

Bankruptcy Act 1966 (Cth) ss 179, 222, 222C

Federal Court Rules 2011 (Cth) r 40.02

Cases cited:

ABL Nominees Pty Ltd v Trinick (Trustee) [2016] FCA 996

Beach Petroleum NL and Another v Johnson and Others (1995) 135 ALR 160

Warner v Mayfair Ltd and Others (2015) 238 FCR 531

Date of hearing:

11 August 2017

Date of last submissions:

15 September 2017

Registry:

South Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

23

Counsel for the Applicants:

Mr J Marsh

Solicitor for the Applicants:

Fisher Jeffries

Counsel for the Respondents:

The Respondents did not appear

ORDERS

SAD 379 of 2015

BETWEEN:

ABL NOMINEES PTY LTD (ACN 106 756 521)

First Applicant

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

Second Applicant

AND:

JAMES GLENN TRINICK AND LINDA CHRISTINA TRINICK AS ADMINISTRATORS OF THE DECEASED ESTATE OF GLENN DOUGLAS TRINICK

First Respondent

DAVID MARTIN IRVIN

Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	2 MARCH 2018

THE COURT ORDERS THAT:

1.The first respondent pay the applicants’ costs of the proceeding, fixed in a lump sum amount of $121,928.98.

2.Pursuant to the undertaking given by Mr Glenn Douglas Trinick and the orders made by the Court on 21 December 2015, the first respondent pay to Mr Stephen Michell in his capacity as trustee of the bankrupt estate of David Martin Irvin any funds withdrawn from the estate of the second respondent pursuant to the orders made on 21 December 2015 and used to pay the costs, fees or other expenses of Gretsas & Associates Lawyers.

3.The first respondent pay the applicants’ costs of the interim application dated 1 June 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. On 22 August 2016, I made an order that pursuant to s 222 of the Bankruptcy Act 1966 (Cth) (the Act) that a Personal Insolvency Agreement executed by Mr Glenn Trinick as controlling trustee, and Mr David Irvin as the debtor, on 9 October 2015, be set aside. I also made an order that a sequestration order be made against the estate of Mr David Martin Irvin pursuant to s 222(10) of the Act, and an order that further consideration of the applicants’ application for the appointment of a trustee and for an order for costs be adjourned to a date to be…