Brown v Trustee in Bankruptcy

FEDERAL COURT OF AUSTRALIA

Brown v Trustee in Bankruptcy [1999] FCA 1569

BANKRUPTCY – application for an order under s 252B of the Bankruptcy Act 1966 (Cth) to annul an order made for the administration of the estate of a deceased person – application made on behalf of the deceased’s son as executor – consideration of circumstances where a person against whom a creditor’s petition has been presented dies after the petition has been served but prior to the making of a sequestration order – whether the deceased was a ‘mentally disabled person’ within the meaning of O 1 r 4 of the Federal Court Rules so as to be incapable of accepting service of the creditor’s petition other than in accordance with O 43 r 13(6) of those Rules.

WORDS & PHRASES – ‘mentally disabled person’

Bankruptcy Act 1966 (Cth) ss 52, 244(13), 245, 252, 252B

Federal Court Rules O 1 r 4 & O 43 r 13(6)

MATHEW STEPHEN BROWN v TRUSTEE IN BANKRUPTCY and FAIR TRADING ADMINISTRATION CORPORATION
N 7903 OF 1999

MOORE J
11 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7903 OF 1999

BETWEEN:

MATHEW STEPHEN BROWN
Applicant

AND:

TRUSTEE IN BANKRUPTCY
First Respondent

FAIR  TRADING ADMINISTRATION CORPORATION
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

11 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7903 OF 1999

BETWEEN:	MATHEW STEPHEN BROWN Applicant
AND:	TRUSTEE IN BANKRUPTCY First Respondent FAIR TRADING ADMINISTRATION CORPORATION Second Respondent

JUDGE:	MOORE J
DATE:	11 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order under s 252B of the Bankruptcy Act 1966 (Cth)(“the Act”) annulling an order made on 1 March 1999 for the administration of the Estate of Mr Stephen Brown (“the deceased”) who died on 7 February 1999. The applicant, Mr Mathew Brown (“the deceased’s son”) is the son of the deceased. The Trustee in Bankruptcy was represented in the proceedings as was the Fair Trading Administration Corporation (“the Corporation”).

2. The events leading to this application are tragic.  On 13 March 1998 the deceased was violently assaulted and suffered serious head injuries.  The effect of this assault is something I discuss shortly.  On 3 August 1998 the deceased was served with two statements of claim in proceedings commenced by the Corporation in the District Court of New South Wales earlier that year (“the District Court proceedings”).  In one statement of claim an amount of $13,698.30 was claimed which included a debt of $8,191.00 arising from a payment by the Building Services Corporation under an insurance scheme established under the Building Services Corporation Act 1989 (NSW).  The Corporation is the successor of the Building Services Corporation.  The payment had been to Mr and Mrs Costa who, so it was…