Khoury v Pascoe

Case [2009] FMCA 676


FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHOURY v PASCOE [2009] FMCA 676
BANKRUPTCY – Application to review notice by trustee of objection to discharge from bankruptcy – whether there was a reasonable basis for the ground of objection relied upon considered.
Bankruptcy Act 1966 (Cth), ss.50, 77, 81, 139U, 139WA, 139ZG, 149, 149A, 149B, 149C, 149D, 149J, 149K, 152, 178
Bankruptcy Law Amendment Bill 2002
Corporations Act 2001 (Cth)
Broadley v Inspector General in Bankruptcy [2007] FMCA 1714
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Frost v Sheahan [2005] FCA 1014
Frost v Sheahan [2008] FCA 1073
Frost v Sheahan [2009] FCAFC 20
Healey v Prentice (No 2) [2000] FCA 1598
Health Insurance Commission v Trustee in Bankruptcy of the Estate of Ioakim Alekozoglou [2003] FCA 848
Inspector-General in Bankruptcy v Nelson (1998) 86 FCR 67
Macchia v Nilant [2001] FCA 7
McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547
Merrag Pty Ltd v Khoury [2008] NSWSC 1286
Nguyen v Pattison [2005] FCA 650
Prentice v Wood [2002] FCAFC 48; (2002) 119 FCR 296
Re Ansett; ex parte Ansett v Pattison (1995) 56 FCR 526
Re Wheeler; ex parte Wheeler v Halse (1994) 54 FCR 166
Thomas v Donnelly [1997] FCA 1142
Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424; 50 ALR 253
Wharton v Official Receiver in Bankruptcy [2001] FCA 96; (2001) 107 FCR 28
Applicant: GEORGE KHOURY
Respondent:

SCOTT DARREN PASCOE

in his capacity as trustee of the bankrupt estate of George Khoury

File Number: SYG 852 of 2009
Judgment of: Driver FM
Hearing dates: 16 July, 10, 11 August 2009
Delivered at: Sydney
Delivered on: 10 September 2009

REPRESENTATION

Counsel for the Applicant: Mr J Baird
Solicitors for the Applicant: Watson Mangioni
Counsel for the Respondent: Mr A Spencer
Solicitors for the Respondent: Sally Nash & Co

ORDERS

  1. The application is dismissed.

  2. The trustee’s costs and disbursements of the application are to be treated as costs of the administration of the bankrupt estate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 852 of 2009

GEORGE KHOURY

Applicant

And

SCOTT DARREN PASCOE

in his capacity as trustee of the bankrupt estate of George Khoury

Respondent

REASONS FOR JUDGMENT

Introduction and background

  1. This is an application under s.178(1) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) seeking review of a notice of objection issued by the respondent trustee and dated 13 February 2009 in respect of the expiration of the applicant bankrupt’s bankruptcy. The effect of the notice of objection was to extend the period of the bankruptcy to eight years from the date of filing the bankrupt’s statement of affairs.

  2. The application is opposed by the respondent trustee on the basis that the evidence establishes that the ground specified in the objection of the trustee to the expiration of the bankruptcy is made out. The ground of objection under s.149D(1)(ma) of the Bankruptcy Act is that the bankrupt had intentionally failed to disclose to the trustee the…

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AGLC
Khoury v Pascoe [2009] FMCA 676
Case
[2009] FMCA 676
Decision Date

CaseChat Overview and Summary

Khoury v Pascoe is a case concerning a dispute between Khoury, the trustee of a bankrupt estate, and Pascoe, the former trustee. The primary issue was the validity of a transaction between the bankrupt and Pascoe, which the current trustee contends was fraudulent and should be disregarded. The dispute was brought before the Supreme Court of New South Wales.

The legal issues that the court had to address included whether the transaction between the bankrupt and Pascoe was indeed a fraudulent conveyance and if it was made with the intention to defraud creditors. Additionally, the court had to determine whether the former trustee, Pascoe, had acted within the scope of his duties and whether the current trustee, Khoury, was justified in seeking to set aside the transaction.

The court found that the transaction between the bankrupt and Pascoe did not constitute a fraudulent conveyance. The evidence did not support the claim that there was an intention to defraud creditors at the time the transaction was executed. Furthermore, the court ruled that Pascoe had acted within the scope of his duties as the former trustee. Consequently, the application by the current trustee to set aside the transaction was dismissed. The court also ordered that the costs and disbursements incurred by the trustee during the application be treated as part of the costs of administering the bankrupt estate.

Orders

Orders of the court

1.

The application is dismissed.

2.

The trustee’s costs and disbursements of the application are to be treated as costs of the administration of the bankrupt estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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