Fletcher v George (No.2)

[2008] FMCA 1625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER v GEORGE (No.2) [2008] FMCA 1625

BANKRUPTCY – Injunction – whether the assets are the trustee’s assets – issues about title.

Applicant: WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE

Respondent: LAUREN KAY GEORGE

File Number: BRG 709 of 2008

Judgment of: Burnett FM

Hearing date: 30 October 2008

Date of Last Submission: 30 October 2008

Delivered at: Brisbane

Delivered on: 30 October 2008

REPRESENTATION

Counsel for the Applicant: Mr Coulsen

Solicitors for the Applicant: Coleman Webb Lawyers

The Respondent appeared on her own behalf

ORDERS

1. That the application be dismissed.

2. That an injunction issue prohibiting and restraining the Bankrupt and or her agents or assigns from dealing with, encumbering or disposing of any assets or chattels on the property at 130 Landing Place, Moggill Queensland, including it’s residence, outbuildings and curtilage, and including and but not limited to the assets and chattels depicted in exhibit 4.

3. That an injunction issue prohibiting and restraining the Bankrupt and or her agents or assigns from dealing with, encumbering or disposing of the Black Hanoverian Mare known as ‘Stellamarra’ and any other livestock, including an unmarked brown brood mare recently upon the property at 130 Landing Place, Moggill Queensland, but presently at a location not disclosed to the Court.

4. That costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 709 of 2008

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE

Applicant

And

LAUREN KAY GEORGE

Respondent

REASONS FOR JUDGMENT

1. The respondent brings an application to set aside the warrant.  The bases on which the application is asserted are twofold.  First, that two of the assets the subject of the warrant, that being a house and that being a horse, are not covered by the warrant.  Evidence placed before the Court yesterday demonstrates that, indeed, the house and the horses were owned by Ms George, the bankrupt's, sister.

2. The circumstances surrounding the transfer of that property from Ms George to her sister were developed in the affidavit of Mr Fletcher and subsequently following the inquiries of Mr Fletcher it seems that the sister recanted on the transfer, indicated that the transfers were indeed transfers that were – I use a neutral term – nefarious, and agreed to transfer those assets in turn to Mr Fletcher, who holds them as trustee.

3. There is prima facie evidence before the Court that satisfies me that the assets are indeed the trustee's assets.  They are presently – or were at least as at yesterday – in the custody and/or possession of the bankrupt and the warrant, in my view, was properly issued. 

4. There, of course, remain the issues about title.  They can be agitated at a later time.  Ms George's sister's entitlement, which I might note is not prosecuted by Ms George's sister but rather by the bankrupt herself, can, of course, be prosecuted at a later time.  I have already listed the matter for directions in my list for next week and no doubt on the occasion of the return of the matter for directions the relevant applications can be foreshadowed, but for the time being the warrant stands.

5. That the application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:      Beverley Schmidt

Date:              4 December 2008