FEDERAL COURT OF AUSTRALIA
Lees v O’Dea (No 2) [2014] FCA 1082
Citation: Lees v O’Dea (No 2) [2014] FCA 1082 Parties: JOHN ROBERT LEES and MAT NG v PETER JOHN O'DEA File number: VID 158 of 2014 Judge: GORDON J Date of judgment: 8 October 2014 Catchwords: BANKRUPTCY – Person bankrupt in Hong Kong – Request by Hong Kong Court to Federal Court of Australia to act in aid – Property of bankrupt – Bequest – Power to appoint receiver Legislation: Administration and Probate Act 1958 (Vic)
Bankruptcy Act 1966 (Cth)Cases cited: Ayres v Evans (1981) 56 FLR 235
Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008
Dick v McIntosh [2002] FCA 1135
Gainsford v Tannenbaum (2012) 216 FCR 543
Levy v Reddy [2009] FCA 63
Monty Financial Services Ltd v Delmo
Official Receiver in Bankruptcy v Schutlz (1990) 170 CLR 306
Radich v Bank of New Zealand (1993) 45 FCR 101
Re Pevsner; Ex parte Trustee in Bankruptcy (1983) 86 FLR 254
Silvia v Thomson (1989) 87 ALR 695
Woolley (dec’d) v Clark (1822) 106 ER 1363Date of hearing: 8 October 2014 Date of last submissions: 8 October 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicants: Mr CD Freeman Solicitor for the Applicants: RE Barros & Company Solicitor for the Respondent: Mr O’Dea appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 158 of 2014
BETWEEN: JOHN ROBERT LEES
First ApplicantMAT NG
Second ApplicantAND: PETER JOHN O'DEA
Respondent
JUDGE:
GORDON J
DATE OF ORDER:
8 OCTOBER 2014
WHERE MADE:
MELBOURNE
UPON the applicants, by their counsel, giving their undertaking that:
1.All money or other property received by the applicants as trustees in bankruptcy of the property of the respondent under or pursuant to this Order shall be applied by them in due course of the administration of the bankruptcy in Hong Kong; and
2.Any matters in controversy in connection with the bankruptcy between the applicants and Stephen Graham Longley as receiver of the respondent’s property in Australia and persons resident in Australia shall be determined by this Court; and
3.The applicants submit to the jurisdiction of this Court in all such matters as aforesaid and abide by any order the Court may make subject to appeal; and
4.The applicants shall appoint a solicitor or firm of solicitors in Australia to accept service on their behalf of any proceedings brought by Stephen Graham Longley, as receiver, or by persons resident in Australia in connection with the said bankruptcy and receivership as aforesaid.
THE COURT ORDERS THAT:
1.Stephen Graham Longley, of Level 21, 181 William Street Melbourne Victoria 3000, having consented in writing to act as receiver, be appointed receiver (Receiver) (without security) of the respondent’s chose in action to have the estate of his late mother, Ada Elizabeth Ursich, under the Will dated 29 May 2014 (the estate) administered in accordance with the duties of the…
Continue reading Lees v O'Dea (No 2)
Sign in free to access the full text
- AGLC
- Lees v O'Dea (No 2) [2014] FCA 1082
- Case
- [2014] FCA 1082
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether it should grant the orders requested by the Hong Kong Court, including a public examination of Mr O’Dea and the examination of his mother, Mr Peter Lilley, and Mr John Anthoniou. Additionally, the Court had to determine whether it should appoint a receiver for Mr O’Dea’s chose in action concerning his mother's estate, as outlined in her will. The Court needed to balance the interests of the trustees in bankruptcy, the creditors, and Mr O’Dea’s estate.
The Court found that the Hong Kong Court’s request for assistance was warranted given Mr O’Dea’s unavailability and the need to locate him and his assets. The Court granted several of the requested orders, including an order for Mr O’Dea to file a statement of affairs. After examining Mr O’Dea and other individuals, the Court decided to appoint a receiver for Mr O’Dea’s chose in action regarding his mother’s estate, subject to certain conditions. This decision was based on the need to manage the estate effectively and ensure that the creditors were fairly treated.
The Court made several orders, including the appointment of Stephen Graham Longley as a receiver for Mr O’Dea’s estate, subject to specific terms. The receiver was authorised to take necessary steps to administer the estate, remit money to the applicants, and incur reasonable costs. The Court also stipulated that if the receiver’s costs were likely to exceed $30,000 plus GST, he must apply to the Court for further directions. The applicants were required to serve a sealed copy of the order on the Commonwealth Bank of Australia and David Edward Whiting. Finally, the proceeding was referred to mediation, with the mediator reporting to the Court by 3 November 2014.
Orders
Orders of the court
1. Stephen Graham Longley, of Level 21, 181 William Street Melbourne Victoria 3000, having consented in writing to act as receiver, be appointed receiver (Receiver) (without security) of the respondent’s chose in action to have the estate of his late mother, Ada Elizabeth Ursich, under the Will dated 29 May 2014 (the estate) administered in accordance with the duties of the executors, being divisible property (within the meaning of s 116 of the Bankruptcy Act 1966 (Cth) and ascertained by reference to the commencement of his bankruptcy in Hong Kong Special Administrative Region on 3 July 2013) of the respondent situate within Australia with authority to take all necessary steps to do all such acts and things as may be necessary or expedient for the purposes of giving full force and effect to his appointment as Receiver including, if necessary, to obtain possession of and to sell any property and to receive proceeds from the administration of the estate.
2. Subject to paragraphs 4, 5 and 6 below, the Receiver be authorised to remit money received by him under this Order to the applicants as trustees in bankruptcy in whom the estate of the respondent is vested pursuant to s 58(2) of the Bankruptcy Ordinance (Chapter 6) (Hong Kong Special Administrative Region).
3. The Receiver be authorised to appoint, if necessary, solicitors in Australia to advise or assist him in Australia to advise or assist him in the discharge of his duties hereunder.
4. The Receiver shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred in the performance of his duties and the exercise of his powers as Receiver under this Order, as may be fixed by the Court on the application of the Receiver, such sum to be calculated on the basis of the time reasonably spent by the Receiver, his partners and staff at the rates specified in Annexure A to this Order, such fees to be paid out of any moneys received by the Receiver under this Order.
5. If the reasonable remuneration and reasonable costs and expenses properly incurred by the Receiver in the performance of his duties and the exercise of his powers as Receiver under this Order are likely to exceed $30,000 plus GST, the Receiver must apply to the Court for further orders or directions, on 7 days’ written notice to the parties.
6. The costs of the applicants of and incidental to this application including reserved costs be taxed as between solicitor and client and that when so taxed the Receiver be at liberty to pay those taxed costs out of any moneys received by the Receiver under this Order.
7. The applicants, the respondent, the Receiver and any third party affected by this Order be at liberty to apply to this Court on seven days’ notice in writing for any consequential or ancillary orders, including to discharge or vary this Order, or to seek directions as may be necessary.
8. The applicants serve a sealed copy of this Order on:
(a) the Commonwealth Bank of Australia, and
(b) David Edward Whiting, of 57 Pearson Street, Brunswick West;
within 7 days of the date of this Order.
9. Pursuant to Rule 28.02 of the Federal Court Rules 2011 (Cth), the proceeding be referred to mediation by a Registrar of the Court. The mediation shall be conducted no later than 31 October 2014. The mediator is to report the result of the mediation to the Court by 3 November 2014.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.