Judith Anne Hargrave as trustee For the Gattorna Family Trust
[2011] FMCA 783
•5 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JUDITH ANNE HARGRAVE AS TRUSTEE FOR THE GATTORNA FAMILY TRUST | [2011] FMCA 783 |
| BANKRUPTCY – Application by Trustee for declaration – entitlement to unclaimed monies paid to the Commonwealth – deceased bankrupt estate. |
| Bankruptcy Act 1966 (Cth), s.254 |
| Applicant: | JUDITH ANNE HARGRAVE AS TRUSTEE FOR THE GATTORNA FAMILY TRUST |
| File Number: | PEG 196 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 October 2011 |
| Date of Last Submission: | 5 October 2011 |
| Delivered at: | Perth |
| Delivered on: | 5 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms F F Xue |
| Solicitors for the Applicant: | Gadens Lawyers |
ORDERS
Under section 254(3) of the Bankruptcy Act 1966 (Cth), the Applicant, as the Trustee of the Gattorna Family Trust, is entitled to the sum of $22,278.80, being monies paid to the Commonwealth by the Official Trustee in respect of the deceased bankrupt estate of Michael Troy Gattorna.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 196 of 2011
| JUDITH ANNE HARGRAVE AS TRUSTEE FOR THE GATTORNA FAMILY TRUST |
Applicant
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
There is an application before the Court for final orders by the applicant, Judith Anne Hargrave, in which Ms Hargrave seeks, on the grounds set out in an affidavit sworn on 19 July 2011,[1] a declaration under subsection 254(3) of the Bankruptcy Act 1966 (Cth)[2] that the applicant as the Trustee of the Gattorna Family Trust is entitled to the sum of $22,278.80, being monies paid to the Commonwealth by the Official Trustee in respect of the deceased bankrupt estate of Michael Troy Gattorna.
[1] “Ms Hargrave’s Affidavit”.
[2] “Bankruptcy Act”.
At the directions hearing on 26 August 2011, this court made orders, relevantly in the following terms:
(1)The matter be listed for hearing at 10:15am on 5 October 2011.
(2)A copy of this order be served by ordinary post on:
(a)the Official Receiver; and
(b)the Commonwealth Attorney General’s Department.
(3)If the Official Receiver or the Commonwealth Attorney General’s Department intend to appear at hearing then:
(a)a Notice of Address for Service be filed and served by 9 September 2011; and
(b)any affidavit in relation to the application be filed and served by 23 September 2011.
No such notice of address for service or affidavit by either the Official Receiver or the Commonwealth Attorney-General’s Department has been filed.
The Court is satisfied that a copy of the order was served on the Official Receiver and the Commonwealth Attorney-General’s Department by reason of paragraphs 3 and 4 of the affidavit of Fei Fei Xue, which was sworn on 4 October 2011 and deposes to service on the Official Receiver and the Commonwealth Attorney-General’s Department by ordinary post. The application was therefore heard unopposed.
The relevant facts are deposed to in Ms Hargrave’s Affidavit and briefly those facts are that:
a)Ms Hargrave is the current Trustee of the Gattorna Family Trust, having been appointed on 1 July 2011;
b)on or about 13 January 2010, the Gattorna Family Trust lodged a proof of debt in the bankrupt estate of Michael Troy Gattorna;
c)on or about 28 April 2010, the Official Trustee declared a dividend of $0.2232 per dollar in respect of the claim made by the Gattorna Family Trust, and issued a cheque in the sum of $20,928.57 to the Gattorna Family Trust;
d)on or about 2 June 2010, the Official Trustee declared a further dividend of $0.0144 per dollar in respect to the claim made by the Gattorna Family Trust, and issued a cheque in the sum of $1,350.23 to the Gattorna Family Trust;
e)the cheques which the Official Trustee issued to the Gattorna Family Trust were not presented for payment by the Gattorna Family Trust as the trustee of the trust at that time, being ISO Industries Pty Ltd (ACN 104 743 562), had been deregistered; and
f)on or about 18 March 2011, Ms Hargrave was told by an officer of the Insolvency and Trustee Service Australia that the Official Trustee had forwarded the sum of $22,278.80 to the Commonwealth pursuant to subsection 254(2) of the Bankruptcy Act, representing the dividend payable to the Gattorna Family Trust because the money had remained unclaimed for a period exceeding six months.[3]
[3] Those facts are deposed to at paras.1-7 of Ms Hargrave’s Affidavit.
At paragraph 8 of Ms Hargrave’s Affidavit, Ms Hargrave makes a claim that as Trustee of the Gattorna Family Trust, she is entitled to the money paid to the Commonwealth by the Official Trustee, and she makes that claim in support of the application as indicated by paragraph 9 of Ms Hargrave’s Affidavit.
Section 254 of the Bankruptcy Act is in the following terms:
(1) In this section, trustee means:
(a)a trustee of the estate of a bankrupt; or
(aa) the administrator of a debt agreement; or
(b)a trustee of a personal insolvency agreement; or
(c)a trustee of a composition or a scheme of arrangement; or
(d)a trustee of the estate of a deceased person in respect of which an order has been made under Part XI of this Act;
and includes the Official Trustee.
(2) Where a trustee has under his or her control:
(a)any dividends or other moneys that have remained unclaimed for a period exceeding 6 months; or
(b)any moneys that it is proposed not to distribute or pay to any person;
he or she shall forthwith pay those moneys to the Commonwealth.
(2A) Where:
(a)the Court has, after the presentation of a creditor's petition against a debtor, directed the Official Trustee, an Official Receiver or a registered trustee to take control of the property of the debtor;
(b)the petition has been withdrawn or dismissed;
(c)the Official Trustee, Official Receiver or registered trustee, as the case may be, has moneys under its control in pursuance of the direction; and
(d)it is not reasonably practicable to pay those moneys to the person entitled to them;
the Official Trustee, Official Receiver or registered trustee, as the case may be, shall pay those moneys to the Commonwealth.
(3) A person who claims to be entitled to any moneys that have been paid to the Commonwealth by a trustee in pursuance of subsection (2) or (2A) may apply to the Court for an order under this subsection declaring him or her to be so entitled and, if the Court is satisfied that the applicant is entitled to those moneys or a part of those moneys, it may make an order accordingly.
(4) Upon receipt by the Official Receiver of an office copy of an order under subsection (3), the Official Receiver shall pay to the person in whose favour the order was made the amount specified in the order out of moneys lawfully available for the purpose.
In consideration of the matter, for the purposes of subsection 254(3) of the Bankruptcy Act, the Court is satisfied that Ms Hargrave, as the Trustee of the Gattorna Family Trust, is a person who can claim to be entitled to the monies, that is, the dividends, that have been paid to the Commonwealth by the Official Trustee because those dividends were previously unclaimed.
Moreover, the Court is satisfied that the applicant, as Trustee of the Gattorna Family Trust, is entitled to those monies and refers, amongst other things, to clauses 7.32 and 7.42 of the Gattorna Family Trust Deed of Settlement,[4] and to clause 7 of the Schedule to that Deed.
[4] “Deed”.
Therefore, in the circumstances, there will be a declaration in the terms sought by the applicant in these proceedings.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 10 October 2011
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