Hawthorne v Carter (Trustee), in the matter of Hawthorne (Bankrupt)

[2006] FCA 1097

FEDERAL COURT OF AUSTRALIA

Hawthorne v Carter (Trustee), in the matter of Hawthorne (Bankrupt)
[2006] FCA 1097

BANKRUPTCY – application for annulment of bankruptcy – certain facts not disclosed to Court at time sequestration orders made – applicants solvent

HELD – the bankruptcies of the applicants were annulled

PETER ANTON HAWTHORNE AND MERVYN DOUGLAS HAWTHORNE v BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATES OF PETER ANTON HAWTHORNE AND MERVYN DOUGLAS HAWTHORNE

SAD 116 OF 2006

MANSFIELD J
26 JULY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 116 OF 2006

BETWEEN:

PETER ANTON HAWTHORNE
First Applicant

MERVYN DOUGLAS HAWTHORNE
Second Applicant

AND:

BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATES OF PETER ANTON HAWTHORNE AND MERVYN DOUGLAS HAWTHORNE
Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	26 JULY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

(1)The bankruptcy of the applicant Peter Anton Hawthorne and the bankruptcy of the applicant Mervyn Douglas Hawthorne be and are hereby annulled.

(2)The respondent be entitled to his reasonable fees, costs and disbursements of his administration of the said bankrupt estates, including the reasonable fees and disbursements of his solicitors in relation to these proceedings.

(3)Notwithstanding order (1) hereof, the respondent be entitled to retain and deal with the moneys presently held by him as trustee of the said bankrupt estates and to receive and retain the proceeds of the sale of shares which he has sold as trustee of the said bankrupt estates, and the respondent is directed to deal with the said funds in the following manner:

(i)to pay to the applicants by 4:00 pm on 31 July 2006 such amount of the said funds as the respondent reasonably determines will constitute surplus moneys after the payments in subparagraphs (ii), (iii) and (iv) hereof;

(ii)by 4 pm on 11 August 2006 to pay the following amounts to the following creditors of the applicants to the extent to which the applicants have not already paid those amounts, or some of them:

ATO   $   2,416.00

(allowing credit for fuel rebate)

Avdata Australia   $       30.00

Boarder Plasting   $  1,899.00

Payne’s Autos   $13,216.00

WorkCover   $     213.00

Petitioning Creditors   $  4,426.00

(including interest and costs)

PB and KG Gaskell Fencing              $  2,566.25

Tatiara Trucks   $     800.00

Bridgestone   $     800.00

Dr A Vealk   $     284.00

G Willoughby   $  2,850.00

SE Windrowing   $     343.20 

(iii)to pay his reasonable fees, costs and disbursements in accordance with the scale of charges agreed to by the parties;

(iv)      to pay the reasonable fees and disbursements of his solicitors;

(v)to pay to the applicants the balance of the said moneys as soon as practicable after payment of the moneys paid pursuant to subparagraphs (i), (ii), (iii) and (iv) hereof;

(4)The respondent have liberty to make an application to the Inspector-General in Bankruptcy for the remission of all or part of any realisation charges paid, or liable to be paid, pursuant to the Bankruptcy (Estate Charges) Act 1997.

(5)       Liberty to apply.

Note:   Settlement and entry of…