Antares Global Pty Ltd v Mansfield (Trustee), in the matter of Yang (Bankrupt)

[2018] FCA 441

FEDERAL COURT OF AUSTRALIA

Antares Global Pty Ltd v Mansfield (Trustee), in the matter of Yang (Bankrupt) [2018] FCA 441

File number:

NSD 433 of 2018

Judge:

WIGNEY J

Date of judgment:

23 March 2018

Catchwords:

PRACTICE AND PROCEDURE - whether leave should be granted under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to a party to take fresh steps in Supreme Court proceedings

BANKRUPTCY AND INSOLVENCY – where debtor has become bankrupt – where creditor wishes to commence legal proceedings or take any fresh step in proceedings against bankrupt

Legislation:

Bankruptcy Act 1966 (Cth), s 58

Date of hearing:

23 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicants:

Mr JM Ireland QC

Solicitor for the Applicants:

McGirr Lawyers

Solicitor for the First Respondent:

Mr Catchpoole of Corrs Chambers Westgarth

Counsel for the Second Respondent:

Mr BC Kasep

Solicitor for the Second Respondent:

Linden Legal

ORDERS

NSD 433 of 2018

IN THE MATTER OF JIN HEUNG YANG (BANKRUPT)

BETWEEN:

ANTARES GLOBAL PTY LTD

First Applicant

SWEALT PTY LTD

Second Applicant

AND:

JIN HEUNG YANG BY HIS TRUSTEE IN BANKRUPTCY, DAVID MANSFIELD

First Respondent

MARIAN YANG

Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	23 MARCH 2018

THE COURT ORDERS THAT:

1.An order pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth), that the applicants have leave to take the following fresh steps in proceedings 2017/16773 in the Supreme Court, New South Wales, between the applicants as plaintiffs and the bankrupt, Jin Heung Yang, as defendant:

(a)To make application to that Court for a continuation of the freezing order made by that Court on 9 March 2018;

(b)To make such application in the Supreme Court proceedings as the applicants may be advised with respect to the second respondent, Marian Yang, dealing with any proceeds of sale of the property known as 6 Gilmour Close, Glenhaven, in the state of New South Wales which may be in her power, possession or control,

2.The matter be listed for a case management hearing on 16 April 2018 at 9:30am.

3.The parties have liberty to re-list the matter at short notice.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)

WIGNEY J:

1. This is an urgent application for an order giving the applicants leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to take further action in proceedings that they have commenced in the Supreme Court of New South Wales against the respondent, Mr Jin Heung Yang.  The further action that is contemplated is the continuation of freezing orders that have been made against Mr Yang.  Leave to take that step is necessary because Mr Yang was declared bankrupt yesterday.  The urgency arises because the freezing orders expire at 2.30 pm today, if not extended.  The terms of the order sought will also give the applicants leave, to extent that leave is necessary, to apply for relief in the Supreme Court proceedings against Mr Yang’s estranged wife, Mrs Marian Yang, who is the second respondent in these proceedings.      

2. I have read the affidavit in support of the application sworn by the applicant’s solicitor, Mr McGirr.  In his affidavit, Mr McGirr explains the nature of the Supreme Court proceedings and the circumstances in which the freezing orders were made.  The affidavit annexes, or exhibits, documents relating to the Supreme Court proceedings.  The obvious purpose of the freezing orders is to prevent the further dissipation of the proceeds of sale of a property formerly owned by Mr and Mrs Yang.  The property of Mr Yang now vests in his trustee in bankruptcy, the first respondent to this proceeding.  The continuation of the freezing order is plainly in the best interests of Mr Yang’s creditors, who will now be required to prove in his bankruptcy.

3. I note that Mr Yang’s trustee in bankruptcy did not oppose the order granting leave, so long as it was limited to permitting the continuation of the freezing orders, as they are, and that there was some temporal limit.  I propose, in that regard, to list the matter for a further case management hearing in mid-April 2018.  Mrs Yang also did not directly oppose the order insofar as it affected her, though her counsel did make submissions on her behalf.  Those submissions, however, were directed more to what can and should occur in the Supreme Court proceedings.  I note also that I have some doubts that leave is necessary in the case of any step that may be taken against Mrs Yang in the Supreme Court proceedings.  Mrs Yang is not a bankrupt.  That said, because the proceedings involve a bankrupt, there may be some argument that leave is required to take any further step in the proceedings, even though that step does not directly affect the bankrupt.  I am, therefore, prepared to grant leave in those circumstances, to the extent it is necessary, and for more abundant caution.       

4. I am satisfied, in all the circumstances, that leave under s 58(3)(b) of the Act is appropriate to permit the applicants to apply for a continuation of the freezing orders against Mr Yang in the Supreme Court proceedings, and to take such steps as may be considered necessary against Mrs Yang in those proceedings to prevent the further dissipation of money that might properly form part of the bankrupt estate of Mr Yang.

5. Orders will be made accordingly. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:    

Dated:       29 March 2018