Gao v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Zhu)

Case •

[2002] FCA 1363

•

6 NOVEMBER 2002

FEDERAL COURT OF AUSTRALIA

Gao v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Zhu) [2002] FCA 1363

PENG YUANG GAO v THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
V 7028 OF 2002

SUNDBERG J
6 NOVEMBER 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 7028 OF 2002

BETWEEN:

PENG YUANG GAO
APPLICANT

AND:

THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

6 NOVEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Application filed 16 September 2002 be dismissed.

2.The applicant pay the respondent’s costs of the Application and of the motion notice of which was filed on 21 October 2002.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 7028 OF 2002

BETWEEN:

PENG YUANG GAO
APPLICANT

AND:

THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
RESPONDENT

JUDGE:

SUNDBERG J

DATE:

6 NOVEMBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The background facts are set out in the reasons I gave on 4 October 2002 for dismissing the applicant’s motion to join the Commonwealth Bank of Australia as a respondent.

  2. The trustee has applied to have the Application dismissed under Order 20 rule 2 of the Rules on the ground that it discloses no reasonable cause of action.  Paragraph 1 of the Application seeks the removal of the trustee under s 156A(4) of the Act on the ground that the trustee is dealing with the bankrupt’s property otherwise than in the interests of the unsecured creditors.  Section 156A(4) does not apply to the Official Trustee in Bankruptcy.  It applies only to registered trustees.  Putting this obstacle to one side, the “dealing” complained of consists in “transferring” to the Bank the trustee’s power to sell the property or “instructing” the Bank to sell it.  As I said in dismissing the joinder motion, that complaint is misconceived.  There is no prospect of the applicant obtaining this aspect of the relief sought.

  3. Paragraph 2 of the Application seeks a review of the trustee’s conduct in “transferring” his power of dealing with the bankrupt’s property to the Bank, which sold it at an undervalue.  For the reasons I gave for dismissing the joinder motion, there is no prospect of a successful review on this ground.  Paragraph 3 of the Application seeks an order that the contract of sale between the Bank and its purchaser be set aside.  What I have said in my earlier reasons shows that there is no prospect of the applicant obtaining this relief.  It was for the reasons then given that I declined to join the Bank as a respondent.  Paragraph 4 seeks damages from the trustee for loss resulting to the unsecured creditors from the trustee’s dealing with the property.  The applicant, who claims to be an unsecured creditor, has no standing to make this claim.  I refer to what I have said in my earlier reasons.

  4. Paragraph 5 of the Application seeks an annulment of the bankruptcy under s 153B of the Act.  The applicant’s affidavits disclose no evidence to substantiate the claim that the bankrupt’s petition ought not to have been accepted by the trustee, and Mr Bezemer deposes that he is not aware of any basis or facts upon which the bankruptcy ought to be annulled.

  5. Since there is no prospect of the applicant obtaining any of the relief sought, and there is no real question to be tried, it is appropriate to dismiss the Application.  See General Steel Industries v Commissioner for Railways (1964) 112 CLR 125.

  6. On the respondents motion I will order that the Application be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:            6 November 2002

The applicant appeared in person.
Counsel for the Respondent: M Lhuede
Solicitor for the Respondent: Gadens Lawyers
Date of Hearing: 6 November 2002
Date of Judgment: 6 November 2002
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