Force Corp Pty Ltd (Receivers and Managers Appointed) (in Liquidation) v Caltabiano

[2017] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORCE CORP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) & ORS v CALTABIANO & ANOR [2017] FCCA 993

Catchwords:
BANKRUPTCY – Application for leave pursuant to s.58(3)(b) to commence proceedings against first respondent in the Supreme Court of New South Wales appropriate to make orders – leave granted.

Legislation:

Corporations Act 2001 (Cth), ss.588G, 588M.

Bankruptcy Act 1966, s.58(3).

Cases cited:

Fraser v Deputy Commissioner of Taxation (1996) 138 ALR 689

First Applicant:	FORCE CORP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 109 630 079
Second Applicant:	MR DAVID JOHN FRANK LOMBE IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF FORCE CORP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
Third Applicant:	MR VAUGHAN NEIL STRAWBRIDGE IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF FORCE CORP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

First Respondent: MR CARMELO CALTABIANO

Second Respondent: MS ANN FORDYCE IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF CARMELO CALTABIANO

File Number: SYG 1251 of 2017

Judgment of: Judge Street

Hearing date: 12 May 2017

Date of Last Submission: 12 May 2017

Delivered at: Sydney

Delivered on: 12 May 2017

REPRESENTATION

Counsel for the Applicants: Mr S Lipp

Solicitors for the Applicants: TressCox Lawyers

Counsel for the First Respondent:	Mr R Dick
Solicitors for the First Respondent:	Mills Oakley

ORDERS

1. If and insofar as it is necessary, leave is granted, nunc pro tunc pursuant to section 58(3)(b) of the Bankruptcy Act 1966, to commence and take fresh steps against the First Respondent in Supreme Court of New South Wales proceeding number 2017/00078336 (Proceeding).

2. For the purpose of order (1), leave to commence the Proceeding against the First Respondent is to be deemed to have been granted on 14 March 2017.

3. It is a condition of the leave to proceed hereby given that the Applicants not take any step to enforce any money judgment or any money order against the First Respondent in the Proceeding without the prior leave of this Court.

4. The parties have liberty to apply on three days' notice.

5. The Applicants costs of and incidental to this application are costs of the winding up of the First Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1251 of 2017

FORCE CORP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 109 630 079

Applicant

And

MR CARMELO CALTABIANO

First Respondent

MS ANN FORDYCE IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF CARMELO CALTABIANO

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for leave under s.58(3)(b) of the Bankruptcy Act1966 (Cth) (“the Bankruptcy Act”) in respect of proposed proceedings by the liquidators seeking orders in respect of proceedings brought in the Supreme Court of New South Wales commenced on 14 March 2017 seeking relief in relation to s.588G and s.588M of the Corporations Act 2001 (Cth).

2. The first respondent is a bankrupt and the second respondent is his trustee. In circumstances that have unfolded, both respondents consent to the proposed orders identified by the applicant in relation to the proceedings in the Supreme Court of New South Wales.

3. The work done by s.58(3) is of considerable importance in relation to preserving the divisible property amongst the creditors of the bankrupt. Proceedings of the kind identified in the present case are ones which if successful, can give rise to an entitlement to proceeds under insurance policies that would not be necessarily treated in the same way as other divisible property of the estate because of the provisions of the Bankruptcy Act.

4. The proposed orders are consistent with the principles identified in Fraser v Deputy Commissioner of Taxation (1996) 138 ALR 689. I am satisfied that it is appropriate to make orders to the effect sought in the application.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2017