In the Matter Of Heasman
[2013] FMCA 166
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IN THE MATTER OF HEASMAN | [2013] FMCA 166 |
| BANKRUPTCY – Competing petitions for the administration of a deceased estate – administrators’ petition considered first – no reason for the Court to refrain from making a sequestration order on that petition. |
| Bankruptcy Act 1966 (Cth), ss.244, 247 |
First Applicant: Second Applicant: | DOUGLAS CHARLES CRANE NERYLE HEASMAN |
| Respondent: | DEPUTY COMMISSIONER OF TAXATION |
| File Number: | SYG 2971 of 2012 |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | LANCE DENNIS HEASMAN |
| File Number: | SYG 2617 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 8 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2013 |
REPRESENTATION
| Counsel for Douglas Charles Crane & Neryle Heasman: | Mr J Johnson |
| Solicitors for Douglas Charles Crane & Neryle Heasman: | Beazley Singleton Lawyers |
| Counsel for the Deputy Commissioner of Taxation: | Ms R Rana |
| Solicitors for the Deputy Commissioner of Taxation: | ATO Legal Services Branch |
ORDERS
On the petition in SYG 2971 of 2012, in accordance with s.247 of the Bankruptcy Act 1966 (Cth), the estate of Lance Dennis Heasman be administered in bankruptcy.
The petitioning administrators’ costs be fixed in the amount of $4,000, and the costs of the Deputy Commissioner of Taxation in proceedings SYG 2971 of 2012 and SYG 2617 of 2012 be fixed in the amount of $4,733.50, and all costs be paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that a Consent to Act as Trustee was signed by Paul Andrew Leroy on 22 November 2012.
The Court notes the obligations on the petitioning administrators to notify, enter and serve these orders in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The petition in SYG 2617 of 2012 be dismissed with no further order as to costs.
Parties have liberty to apply on three days’ notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2971 of 2012
DOUGLAS CHARLES CRANE
First Applicant
NERYLE HEASMAN
Second Applicant
And
DEPUTY COMMISSIONER OF TAXATION
Respondent
SYG 2617 of 2012
DEPUTY COMMISSIONER OF TAXATION
Applicant
And
LANCE DENNIS HEASMAN
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me two petitions seeking orders of administration in bankruptcy of a deceased estate. The first was filed by a creditor, the Deputy Commissioner of Taxation, on 12 November 2012. The second was filed by the executors named in the deceased’s will, on 13 December 2012. I was invited by counsel for the Deputy Commissioner to hear that petition first.
Having heard the parties, I have come to the view that the administrators’ petition in SYG2971/2012 should be granted because the procedural requirements for the making of the administration order upon that petition under s.247 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) have been met and no persuasive reason has been advanced by the Deputy Commissioner as to why that petition should not be granted. I have regard to the affidavit evidence of Mr Spring, Ms Coleman and Mr Lee.
That tells me that there was obvious and understandable concern in the Australian Taxation Office about the activities of the deceased and that there was some surprise and annoyance on the part of the Deputy Commissioner’s officers when they discovered that the petition under s.247 had been filed in circumstances where they had discussed with the solicitor for the deceased and, I understand, for the estate, the likelihood of a petition under s.244 of the Bankruptcy Act being filed.
It does not appear to me, however, that the conversation recited by Ms Coleman in paragraph 4 of her affidavit points to any untruthful statement by the solicitor or, indeed, anything that establishes an intention to mislead. The solicitor informed Ms Coleman who the executors of the estate were and invited her to send the proposed petition under s.244 to him. He did not say that he had instructions to receive it and, ultimately, the petition was served upon the executors.
A Consent to Act as Trustee on the administrators’ petition was signed by Paul Andrew Leroy on 22 November 2012. There is no reason to suppose that Mr Leroy would be an inappropriate trustee of the estate or that he would fail to act in any way in accordance with his duty as a registered trustee. In the event that the Deputy Commissioner, as a significant creditor, has concerns about the administration of the estate by Mr Leroy the Deputy Commissioner would have remedies available.
I am aware that the petition under s.244 of the Bankruptcy Act was filed earlier in time than the petition under s.247. However, having been invited by counsel for the Deputy Commissioner to consider the administrators’ petition first, I have done so. Having considered it, I am not persuaded that there is any reason for the Court to refrain from making a sequestration order on the administrators’ petition. It is obvious that the estate is insolvent and that a sequestration order should be made. The possible lack of clarity in the dealings between Ms Coleman and the solicitor concerning the Deputy Commissioner’s petition is not a sufficient reason for the Court to refrain from making a administration order on the administrators’ petition.
In all the circumstances, I have decided to make orders for the administration of the deceased estate in accordance with the administrators’ petition filed on 13 December 2012.
I will order that in accordance with s.247 of the Bankruptcy Act the estate of Lance Dennis Heasman be administered in bankruptcy and that the petitioning administrators’ costs as well as the costs of the Deputy Commissioner of Taxation in that proceeding as well as in proceeding SYG2617/212 be fixed and paid in accordance with the Bankruptcy Act. The Court notes that a Consent to Act as Trustee was signed by Paul Andrew Leroy on 22 November 2012 and the Court further notes the obligations of the petitioners to enter, notify and serve these orders.
I will finally order that the petition in proceeding SYG2617/212be dismissed with no further order as to costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 March 2013
0
0
0