Birdseye v Sheahan

[2004] FCA 609

FEDERAL COURT OF AUSTRALIA

Birdseye v Sheahan [2004] FCA 609

BANKRUPTCY – trustee – validity of appointment of registered trustee – consent to act – registered trustee filed Notice of Objection to discharge – whether at time of objection, registered trustee was in law trustee of bankrupt estate – certificate of appointment issued – registered trustee not notified in writing of appointment – whether registered trustee informed Official Receiver within 10 days of appointment of acceptance to act – whether formal defect invalidated appointment.

Bankruptcy Act 1966 (Cth)

NICHOLAS GUY BIRDSEYE v JOHN SHEAHAN and THE OFFICIAL RECEIVER

S 7005 of 2003

LANDER J
ADELAIDE
14 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S7005 OF 2003

BETWEEN:

NICHOLAS GUY BIRDSEYE
APPLICANT

AND:

JOHN SHEAHAN
FIRST RESPONDENT

THE OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

14 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S7005 OF 2003

BETWEEN:

NICHOLAS GUY BIRDSEYE
APPLICANT

AND:

JOHN SHEAHAN
FIRST RESPONDENT

THE OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:	LANDER J
DATE:	14 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This matter was heard at the same time as a similar application in action number S7006 of 2003, O’Brien v Sheahan [2004] FCA 608.

2. After stating the facts in this matter, I shall refer to the reasons in that matter.

3. The applicant seeks:

   ‘1.A declaration that Mr John Sheahan is deemed to have declined the appointment as the Trustee in Bankruptcy of the Applicant’s bankrupt estate on or about 23 June 2000.

   2.A declaration that the Certificate of Appointment in favour of Mr John Sheahan dated 7 July 2000 is void and/or of no effect.

   3.A permanent injunction restraining Mr John Sheahan from further acting or purporting to act as the Trustee in Bankruptcy of the Applicant’s bankrupt estate.

   4.That Mr John Sheahan pay the Applicant’s costs of and incidental to this application.

   5.Such further or other orders as the Court deems fit.’

4. On the petition of the Deputy Commissioner of Taxation, a sequestration order was made and the applicant became bankrupt on 9 November 1998.  At the time of his bankruptcy, no registered trustee had agreed to act as trustee of his estate and the Official Trustee, by operation of the Bankruptcy Act 1966 (Cth) (the Act), became the applicant’s trustee in bankruptcy: s 58.

5. On 14 January 1999 the applicant filed his Statement of Affairs.

6. The respondent is a registered trustee.  On 26 April 2000 the respondent signed a Consent to Act as trustee pursuant to s 156A of the Act.

7. A meeting of the applicant’s creditors was convened on 16 May 2000 for the purpose of resolving to appoint the respondent as trustee of the applicant’s estate in place of the Official Trustee.  A quorum did not assemble.