FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURKE v INSPECTOR-GENERAL IN BANKRUPTCY & ORS | [2013] FMCA 2 |
| BANKRUPTCY – Possible de-registration of a registered trustee – formation of a committee to consider de-registration – whether the committee had been convened for that purpose considered – when a committee can be convened for that purpose considered. WORDS AND PHRASES – “Convened”. |
| Bankruptcy Act 1966, s.155H Bankruptcy Regulations 1966 (Cth) Evidence Act 1995 (Cth), ss.166, 167 |
| Applicant: | JOHN CHRISTOPHER BURKE |
| First Respondent: | INSPECTOR-GENERAL IN BANKRUPTCY |
| Second Respondent: | ROBERT TOM |
| Third Respondent: | ROBYN ERSKINE |
| Fourth Respondent: | ANDREW SELLARS |
| File Number: | SYG 1136 of 2012 |
| Judgment of: | Driver FM |
| Hearing dates: | 17 October and 14 December 2012 |
| Date of last submission: | 15 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Johnson |
| Solicitors for the Applicant: | Sally Nash & Co |
| Counsel for the Respondents: | Mr Heath |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 25 May 2012 is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1136 of 2012
| JOHN CHRISTOPHER BURKE |
Applicant
And
| INSPECTOR-GENERAL IN BANKRUPTCY |
First Respondent
| ROBERT TOM |
Second Respondent
ROBYN ERSKINE
Third Respondent
ANDREW SELLARS
Fourth Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Burke) is a registered trustee under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). He is concerned about action being taken against him by the Inspector-General in Bankruptcy (the Inspector-General) which may result in his deregistration.
The following facts have been agreed between the parties.
a)The applicant is a registered trustee.
b)By letter dated 26 July 2011 and pursuant to s.155H(1) of the Bankruptcy Act the Inspector-General (by her delegate Mr Findlay) (the delegate) asked Mr Burke for a written explanation why Mr Burke should continue to be registered (the show cause letter).
c)The delegate was not satisfied by the explanation provided by Mr Burke in response to the show cause letter.
d)Because the delegate was not satisfied by the explanation provided by Mr Burke in response to the show cause letter, pursuant to s.155H(2) of the Bankruptcy Act and reported that fact to the Inspector-General, the Inspector-General was required to convene a committee to consider whether Mr Burke should continue to be registered.
e)The committee consisted of:
i)Mr Robert Tom, a delegate of the Inspector-General;
ii)Mr Andrew Sellars, an Australian Public Service employee; and
iii)Ms Robyn Erskine, a registered trustee chosen by the Insolvency Practitioners’ Association of Australia (ACN 002 472 362.
f)Pursuant to regulation 8.30(2) of the Bankruptcy Regulations 1966 (Cth) (the Regulations), because the Inspector-General was required to convene a committee to consider whether Mr Burke should continue to be registered for the purposes of s.155H(2), the committee after consultation between themselves[1] was…
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- Case
- [2013] FMCA 2
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the committee had been properly convened for the purpose of considering the de-registration of Burke. The court was required to determine what circumstances would justify the convening of such a committee and whether the respondent had acted within the scope of his powers under the Bankruptcy Act 1966 (Cth). The appellant argued that the committee was not convened for the intended purpose, as required by the Act.
In examining the matter, the court found that the committee had indeed been convened for the specific purpose of considering Burke's de-registration, as evidenced by the respondent's actions and the context in which the committee was formed. The court held that the respondent had acted within the scope of his powers under the Act, and that the committee's formation and the subsequent consideration of Burke's de-registration were lawful. Therefore, the court dismissed the appellant's application with costs.
The court's decision clarified the requirements for convening a committee to consider the de-registration of a trustee under the Bankruptcy Act. The final order of the court was that the application filed on 25 May 2012 be dismissed with costs.
Orders
Orders of the court
1.
The application filed on 25 May 2012 is dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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