Dick v McIntosh

Case [2001] FCA 1008

FEDERAL COURT OF AUSTRALIA

Dick as Trustee in Bankruptcy v McIntosh  [2001] FCA 1008

BANKRUPTCY – application to Court to act in aid of a United Kingdom bankruptcy – power to act – relevant principles

Bankruptcy Act 1966 s 29

Sykes & Co v Lagos Colonial Secretary and Davies [1891] AC 480 (PC) cited
Re Ayres, Ex parte Evans (1981) 51 FLR 395 applied
Ayres v Evans (1981) 56 FLR 235 (FC) applied
Radich v Bank of New Zealand (1993) 45 FCR 101 (FC) applied
Re a Debtor; ex parte Viscount of Royal Court of Jersey [1981] 1 Ch 384 cited

ANDREW DICK AS TRUSTEE OF THE PROPERTY OF ANN CAPPER McINTOSH (A BANKRUPT) v ANN CAPPER McINTOSH (A BANKRUPT)

Q7305 OF 2001

COOPER J
BRISBANE
31 JULY 2001


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7305 OF 2001

BETWEEN:

ANDREW DICK AS TRUSTEE OF THE PROPERTY OF ANN CAPPER McINTOSH (A BANKRUPT)
APPLICANT

AND:

ANN CAPPER McINTOSH (A BANKRUPT)
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

31 JULY 2001

WHERE MADE:

BRISBANE

Subject to the following undertakings to the Court being given by the applicant himself, or by his counsel that:

(a)All money or other property received by the applicant as trustee in bankruptcy of the property of the bankrupt under or pursuant to these orders shall be applied by him in due course of administration of the bankruptcy in England.

(b)Any matters in controversy in connection with the bankruptcy between the applicant and Gregory Michael Moloney as receiver of the respondent’s property in Australia and persons resident in Australia shall be determined by this Court.

(c)The applicant submits to the jurisdiction of this Court in all such matters as aforesaid and abides by any order the Court may make subject to appeal; and

(d)The applicant shall appoint a solicitor or firm of solicitors in this country to accept service on his behalf of any proceedings brought by Gregory Michael Moloney, as receiver, or by persons resident in Australia in connection with the said bankruptcy as aforesaid.

THE COURT ORDERS THAT:

1.Gregory Michael Moloney, upon his consenting in writing to act as receiver, be appointed receiver without security of the divisible property, within the meaning of s 116 of the Bankruptcy Act 1966 (Cth), of Ann Capper McIntosh situate within Australia with authority to take all necessary steps to obtain possession of and to sell the same and to receive the proceeds thereof, and, to do all such acts and things as may be necessary or expedient for the purposes of giving full force and effect hereto.

2.Gregory Michael Moloney be authorised to remit money received by him under these orders to the applicant as trustee in bankruptcy in whom the estate of the bankrupt Ann Capper McIntosh is vested pursuant to s 306 of the Insolvency Act 1986 (UK) after payment of any encumbrances on the said property and of the costs, charges and expenses that may be incurred in the exercise of any of…

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Dick v McIntosh [2001] FCA 1008
Case
[2001] FCA 1008
Decision Date

CaseChat Overview and Summary

The case of Dick v McIntosh involved an application by the trustee in bankruptcy, seeking the appointment of a receiver to manage and sell the divisible property of the bankrupt, Ann Capper McIntosh. The application was heard in the Federal Court of Australia. The primary legal issue before the court was whether to appoint Gregory Michael Moloney as the receiver of the bankrupt’s divisible property under the Bankruptcy Act 1966, and to grant him the necessary powers to manage and sell the property effectively. The court also needed to consider whether the appointment and powers granted to the receiver would be in the best interest of the creditors and the administration of the bankruptcy.

The court found that the application was appropriate and in the best interests of the creditors. It was noted that the bankrupt’s property was located within Australia and that the proposed receiver, Gregory Michael Moloney, had consented to act in the role. The court determined that the powers sought were reasonable and necessary for the effective management and disposal of the property to realise funds for the creditors. The court emphasised that the receiver would be required to act in the interests of all creditors equally and to follow due process in the sale of the property. The court concluded that the appointment of the receiver was warranted and granted the requested orders.

In summary, the Federal Court of Australia appointed Gregory Michael Moloney as the receiver of Ann Capper McIntosh’s divisible property. The court authorised the receiver to take all necessary steps to obtain possession of and sell the property, to remit proceeds to the trustee in bankruptcy, and to appoint solicitors if necessary. The court also addressed the payment of costs and the liberty for the applicant and bankrupt to seek further orders as necessary. The court’s decision was made in the interests of ensuring the proper administration of the bankruptcy and the equitable treatment of all creditors.

Orders

Orders of the court

1. Gregory Michael Moloney, upon his consenting in writing to act as receiver, be appointed receiver without security of the divisible property, within the meaning of s 116 of the Bankruptcy Act 1966 (Cth), of Ann Capper McIntosh situate within Australia with authority to take all necessary steps to obtain possession of and to sell the same and to receive the proceeds thereof, and, to do all such acts and things as may be necessary or expedient for the purposes of giving full force and effect hereto.

2. Gregory Michael Moloney be authorised to remit money received by him under these orders to the applicant as trustee in bankruptcy in whom the estate of the bankrupt Ann Capper McIntosh is vested pursuant to s 306 of the Insolvency Act 1986 (UK) after payment of any encumbrances on the said property and of the costs, charges and expenses that may be incurred in the exercise of any of the powers hereby conferred or otherwise hereunder.

3. Gregory Michael Moloney be authorised to appoint, if necessary, solicitors in Australia to advise or assist him in the discharge of his duties hereunder.

4. The costs of the applicant of and incidental to this application including reserved costs be taxed as between solicitor and client and that when so taxed Gregory Michael Moloney be a liberty to pay the same out of any moneys of the bankrupt in Australia received by Gregory Michael Moloney.

5. The applicant and the bankrupt be at liberty to apply to this Court on seven days notice for any consequential or ancillary orders or directions in this matter as may be necessary.

6. The applicant serve a sealed copy of this order on the bankrupt as soon as possible hereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J

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Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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