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) |
| 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
The application is dismissed.
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
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.
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
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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