Boral Montoro Pty Ltd v McLachlan

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BORAL MONTORO PTY LTD v  MCLACHLAN [2007] FMCA 533

BANKRUPTCY – Trustee – appointment of trustee – entitlement of debtor to challenge appointment of proposed trustee.

Bankruptcy Act 1966, ss.30(1), 52(1)(c), 52(2)(b), 156A, 178, 179

Glover v Roche [2003] FMCA 576
Rondo Building Services Pty Ltd v Starkey [2005] FMCA 275
Cobbs Hill (Tasmania) Meat Suppliers Pty Ltd v L El Moustafa (1998) 83 FCR 403
Griffin v Triscott [2004] FMCA 403
Deputy Commissioner of Taxation v Niemann (1984) 69 FLR 79

Applicant: BORAL MONTORO PTY LTD

Respondent: SANDRA MCLACHLAN

File number: BRG 15 of 2007

Judgment of: Wilson FM

Hearing date: 23 March 2007

Date of last submission: 23 March 2007

Delivered at: Brisbane

Delivered on: 13 April 2007

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: James Conomos Lawyers

Counsel for the Respondent: Mr. D. Keane

Solicitors for the Respondent: Cooke & Hutchinson Lawyers

ORDERS

1. Pursuant to s.30(1)(b) Bankruptcy Act it is declared that Nick Jim Combis should not act as trustee of the bankrupt estate of the respondent debtor.

2. That the hearing of the creditor’s petition be adjourned to enable:

   (a)The withdrawal of the consent by Nick Jim Combis to act as trustee; and

   (b)The creditor to prove the matters required by s.52(1)(c) of the Act.

3. The applicant creditor pay the respondent debtor’s costs of and incidental to the appearances on 14 and 23 March 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 15 of 2007

BORAL MONTORO PTY LTD

Applicant

And

SANDRA MCLACHLAN

Respondent

REASONS FOR JUDGMENT

1. This application raises a short but interesting point, and one which I am told is devoid of direct authority.  The applicant creditor has presented a creditor’s petition and the respondent debtor accepts that a sequestration order should be made.  However, the respondent debtor opposes the appointment of Nick Jim Combis as trustee of her estate.  Mr Combis has executed a Consent to Act in Form 12. 

2. Mr Combis is a member of Vincents Chartered Accountants, and a Registered Trustee, as that term is defined.  It is common ground that Vincents Chartered Accountants is a creditor of the debtor in a modest amount.  The question is whether, in those circumstances, Mr Combis ought be appointed trustee and, more fundamentally, whether the respondent debtor can object to his appointment.  Those issues were referred to this court by order of the Registrar on 9 March 2007.

3. The applicant creditor submits that s.156A Bankruptcy Act is an exclusive code dealing with the circumstances in which a Trustee can be removed.  As it does not permit the debtor or bankrupt to apply to remove the trustee, it is said that the issues before the court should be decided adversely to the respondent.

4. Section 156A(1) of the Act provides that a Registered Trustee may consent to act as trustee of the estate by signing an instrument, as

   
   

   Mr Combis has done in the present case. That instrument is in the approved form. Section 156A(3) is…