Application By Leroy in the Matter Of the Bankrupt Estate Of Siamak Taheri
[2014] FCCA 166
•3 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APPLICATION BY LEROY IN THE MATTER OF THE BANKRUPT ESTATE OF SIAMAK TAHERI | [2014] FCCA 166 |
| Catchwords: BANKRUPTCY – Application to approve compromise between former and current trustees over former trustee’s remuneration – where remuneration agreed is less than entitlement – where substantial creditor submits to any order of court – whether to approve compromise. |
| Legislation: Bankruptcy Act 1966 (Cth) s.162(4) |
| Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2002] FCA 607 Lloyd v the Federal Commissioner of Land Tax (1933) 49 CLR 160 Sutherland (in the matter of Scutts) (1999) FCA 147. |
| Applicant: | PAUL LEROY |
| File Number: | SYG 3028 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 3 February 2014 |
| Date of Last Submission: | 3 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Marshall |
| Solicitors for the Applicant: | Bartier Perry |
ORDERS
Pursuant to section 134(4), a direction that the applicant, Paul Leroy, would be justified:
(a)In making a payment from the funds he holds in the bankrupt estate of Siamek Taheri (the estate) in the sum of $164,342.22 to Andrew Barnden and Daniel Juratowich as the final payment of their remuneration and expenses as the former trustees of the estate including legal costs incurred with ERA Legal for acting in regard to the estate; and
(b)In releasing Andrew Barnden and Daniel Juratowich from the costs order made against them in favour of the applicant on 11 March 2012 in proceedings in the Federal Magistrates Court of Australia numbered SYG 2629 of 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3028 of 2013
| PAUL LEROY |
Applicant
REASONS FOR JUDGMENT
In this matter, an application is made for the Court to approve a compromise between a former trustee and a current trustee over the former trustee’s remuneration, including remuneration of certain solicitors employed by him in the course of his duties as trustee. I have been helpfully provided by Mr Marshall with outlined submissions in relation to the matter, which deal with the ability of the Court to make the orders sought. And in particular, reference has been made to what fell from Stone J in Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2002] FCA 607. And reference to Lloyd v the Federal Commissioner of Land Tax (1933) 49 CLR 160 at 169 and Sutherland (in the matter of Scutts) (1999) FCA 147.
Importantly, Mr Marshall notes that, effectively, the remuneration which has been agreed between the two trustees would, on a calculation, be less than the remuneration to which the original trustee might have been entitled under regulation 8.08 and s.162(4) of the Bankruptcy Act 1966 (Cth) which would otherwise apply.
I have recently determined in a matter, Pascoe v Liprini [2013] FCCA 1958, that the provisions of regulation 8.08 in a matter that comes to this court in respect of an estate that was sequestrated prior to 1 December 2010 only allows for remuneration as set out in the IPAA Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia at a level of 85 per cent of those charges. The last relevant publication of those rates was in approximately 1999. Mr Marshall has satisfied me that the amount payable to the first trustee would even be below this when disbursements are taken into account.
I am also directed to an email sent by a Mr David Farrar to a Mr Mark Tierney, the lawyer for the current trustee, from a very substantial creditor of the estate which indicates that the creditor now proposes to submit to any order of the court.
In those circumstances, I propose to make the orders suggested by Mr Marshall as found at paragraph 16 of his submissions.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 6 February 2014
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