Glover v Roche - [2003] FMCA 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLOVER & ANOR v ROCHE & ANOR

[2003] FMCA 576

BANKRUPTCY – Appointment of trustee upon the making of a sequestration order – whether the Court appoints a trustee or whether a trustee is appointed by force of the Act considered – registered trustee appointed upon filing a consent to act with the Official Receiver – manner in which a consent may be filed considered – whether a consent must be filed prior to the making of a sequestration order considered.

REMOVAL OF TRUSTEE – Whether the registered trustee had a conflict of interest considered.

Bankruptcy Act 1966 (Cth), ss.58, 153B, 156A, 157, 160, 272

Bankruptcy Regulations
Federal Court Rules

Neil Keith Smith; ex parte Kern Corporation Limited (unreported, Pincus J, 19 June 1985)

First Applicant:

Second Applicant:

PETER RICHARD GLOVER

PETER LENNOX SHEILS

First Respondent:

Second Respondent:

CHRISTOPHER ROCHE

BARRY JOSEPH ROCHE

File No:

CZ17 of 2003

CZ31 OF 2003

Delivered on:

2 December 2003

Delivered at:

Canberra via telephone to Sydney and Brisbane

Hearing date:

2 December 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicants:

Dr D Hassall

Solicitors for the Applicants:

Peter R Glover

Solicitors for the First Respondent:

Mr R Cowen

Tucker & Cowen Solicitors

Solicitors for the Second Respondent:

Mr B Spinks
Robinson Legal

ORDERS – CZ17 of 2003

The Court declares that, upon the making of sequestration orders against the estates of Christopher Roche and Barry Joseph Roche on 30 October 2003, William Balfour Rangott became the registered trustee of the bankrupt estates of the bankrupts pursuant to s.156A(3) of the Bankruptcy Act 1966 (Cth).
There be no costs order in respect of costs incurred after 30 October 2003 arising out of order 4 made by this Court on 30 October 2003.
The applicants on the motion filed in court on 2 December 2003 for the removal of William Balfour Rangott as trustee of the bankrupt estates be granted leave to amend the notice of motion to delete the bankrupts as applicants.
The motion by Pilor Pty Ltd pursuant to s.156A(4) of the Bankruptcy Act for the removal of William Balfour Rangott as the trustee of the bankrupt estates is dismissed with costs.
The bankrupts are released from undertakings not to leave Australia given prior to the making of sequestration orders against their estates on 30 October 2003, noting that the undertakings are otiose, having regard to the operation of s.272(1)(c) of the Bankruptcy Act.
The bankrupts’ passports held by, or under the control of, this Court shall be given to the trustee, William Balfour Rangott, for safekeeping as soon as is practicable.

ORDERS – CZ31 of 2003

Order 1 sought in the notice of motion filed in court by leave on 2 December 2003 is granted.
William Balfour Rangott, in his capacity as trustee of the bankrupt estates of Christopher Roche and Barry Joseph Roche, be joined as an applicant to the proceedings instituted Peter Richard Glover and Peter Lennox Sheils on 20 November 2003.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 576
Decision Date: 2 December 2003

CaseChat Overview and Summary

The Federal Magistrates Court was asked to determine the appointment of a trustee for the estates of Christopher Roche and Barry Joseph Roche. The applicants, Peter Richard Glover and Peter Lennox Sheils, sought the removal of the registered trustee, William Balfour Rangott. They argued that Mr Rangott had a conflict of interest due to his prior dealings with the bankrupts. The court had to decide whether the registered trustee was properly appointed and if there was a conflict of interest warranting his removal. The court found that Mr Rangott was correctly appointed as trustee pursuant to s.156A(3) of the Bankruptcy Act. The consents to act were signed and handed over to an authorised representative of the Official Receiver before the sequestration orders were made. This satisfied the requirement of s.156A(1) of the Act. The court rejected the argument that Mr Rangott had a conflict of interest, noting that the Bankruptcy Act allows for the resignation or removal of a trustee if necessary. The motion for removal was dismissed with costs.

Orders