Crowe as trustee Of the Property Of Cowan
[2006] FMCA 97
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROWE AS TRUSTEE OF THE PROPERTY OF COWAN | [2006] FMCA 97 |
| BANKRUPTCY – Letter of Request to High Court of Justice – where debtor failed to sign undertakings not to deal with property – whether ex parte orders appropriate – what documents should be served upon the bankrupt. |
| Pascoe; In the matter of Hudson [2005] FCA 1421 |
| Applicant: | PETER DOUGLAS CROWE AS TRUSTEE OF THE PROPERTY OF ANTHONY WILLIAM COWAN, A BANKRUPT |
| File Number: | PEG274 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 January 2006 |
| Date of Last Submission: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Carles Solicitors |
ORDERS
A letter of request in the form of the draft letter annexed to the application be completed and dispatched to the High Court of Justice in London.
Liberty to apply in respect of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG274 of 2005
| PETER DOUGLAS CROWE AS TRUSTEE OF THE PROPERTY OF ANTHONY WILLIAM COWAN, A BANKRUPT |
Applicant
REASONS FOR JUDGMENT
This is an application by Peter Douglas Crowe, the Trustee of the bankrupt estate of Anthony William Cowan, a resident of Western Australia. The application is for this court to complete and dispatch to the Justices of the Bankruptcy Division of the High Court of Justice in London a letter of request for assistance in relation to certain land in England allegedly owned by the bankrupt.
The applicant seeks this order on an ex parte basis because, he argues, if the bankrupt knew about the application, which was originally commenced on 19 December 2005 whilst the bankrupt was in England, he, the bankrupt, might take steps to dispose of the property before the letter of request could be issued and acted upon.
The letter of request is necessary because certain proceedings have been commenced on the part of the trustee in England to vest the title of the property in the applicant and according to the affidavit of Peter Douglas Crowe dated 15 December 2005 it is necessary to allow those proceedings to go forward. It would appear that attempts to lodge a caveat against the property have met with no success in England without the assistance of a letter of request.
The affidavits of Mr Crowe dated 15 December 2005 and 19 January 2006 show that the applicant was granted leave by the Trustee to travel abroad to England because his father had died. The Trustee had attempted to obtain from the bankrupt a written undertaking that he would not attempt to deal with this property but the bankrupt refused to provide such an undertaking. This caused the Trustee to fear for his ability to protect the property. I have to say that I am somewhat surprised that given the concern felt by the Trustee this matter has not come before me prior to today, but this may be due more to the problems of arranging a hearing over the vacation than anything else.
In the case of Pascoe; In the matter of Hudson [2005] FCA 1421 Lindgren J issued a letter of request to the court in New Zealand on an ex parte basis having accepted the Trustee's submission that notice to the bankrupt should not be required because of the danger to the property that might arise if he was aware. Given that the bankrupt has refused to sign the letter of undertaking that he will not deal with the property I think that the Trustee was right to approach the court on an ex parte basis and I do not think that the claim that he has to ex parte relief should be evaporated because of what might possibly be the lack of a sense of urgency on the part of those responsible in the court for bringing the case before me.
I therefore intend to give orders providing for the completion and dispatch of the letter of request. But I will require that the letter be served upon the bankrupt together with a copy of the process that has been issued out of the High Court of Justice and a copy of my orders so that the bankrupt can have a clear understanding of what has transpired.
The substantive relief is being claimed in England and it is there that the bankrupt should argue any point that he may have in relation to the title of the property. Mr Carles, who appears on behalf of the Trustee, is unable to tell me whether the bankrupt has returned to Australia as he promised he would do on 11 January. The service of the orders and the application is therefore a problem for the Trustee but it should not hold up the issue of the letter of request which may enable the Trustee's position (and that of the bankrupt) to be protected by the filing of a caveat in the Land Registry of England.
I therefore make the following orders:
(1)That a letter of request in the form of the draft letter annexed to the application be completed and dispatched to the High Court of Justice in London.
(2)Liberty to apply in respect of costs.
The court notes that the letter of request is ancillary to certain proceedings numbered 1/M of 2006 commenced in the High Court of Justice on 6 January 2006 and accepts the applicant's undertaking that a copy of the letter of request together with a copy of this order will be served upon the respondent together with a copy of the application to the said court.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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