Legge v Mackinlays

Case [2007] FMCA 223


FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEGGE v MACKINLAYS [2007] FMCA 223
BANKRUPTCY – Annulment of sequestration order – principles – whether sequestration order ought not to have been made – failure to make full financial disclosure – discretionary factors.
Bankruptcy Act 1966, ss.5(2)&(3), 74, 109(1)(a), 153A, 153B, and 154
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.7.04
Baker v Rigg [2005] FCA 1760
Boles v Official Trustee in Bankruptcy [2001] FCA 639
Byczko v Sheahan [2001] FMCA 120
Cheung v Maxims Entertainment Pty Ltd [2002] FMCA 348
Hudson v Whalan [1999] FCA 189
Lockhart v DCT (2005) 59 ATR 540; [2005] FMCA 641
Mahmoud v The Owners’ Corporation Strata Plan No 811 [No.3] [2006] FMCA 1742
Plant v Ken Smith Electronics Pty Ltd & Anor [2000] FMCA 7
Re Almassy [1999] FCA 1004
Re Burlock; Burlock v Commissioner of Taxation (1994) 49 FCR 522
Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Re Frank; Ex parte Piliszky (1987) 16 FCR 396
Re Ginnane; Ex parte Ginnane (1994) 60 FCR 429
Re Gollan; Ex parte Gollan (1992) 40 FCR 38
Re Papps; ex parte Tapp (1997) 78 FCR 524
Re Williams (1968) 13 FLR 10
Sandell v Porter (1966) 115 CLR 666
Stankiewicz v Plata [2000] FCA 1185
Applicant: GEOFFREY SPENCER LEGGE
Respondent: MACKINLAYS
File Number: PEG 159 of 2006
Judgment of: Lucev FM
Hearing date: 9 November 2006
Date of Last Submission: 9 November 2006
Delivered at: Perth
Delivered on: 2  March 2007

REPRESENTATION

Applicant: Mr. Legge in person
Counsel for the Respondent: Ms. L. Horwood
Solicitors for the Respondent: Mackinlays
Counsel for the Official Trustee: Mr. A.F. Carles
Solicitors for the Respondent: Carles Solicitors

ORDERS

  1. The Application be dismissed.

  2. The costs of the Respondent and the Official Trustee be taxed and paid out of the Bankrupt’s estate in the priority fixed by s.109(1)(a) of the Bankruptcy Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 159 of 2006

GEOFFREY SPENCER LEGGE

Applicant

And

MACKINLAYS

Respondent

REASONS FOR JUDGMENT

The application

  1. This Application is an application for annulment of a sequestration order under s.153B of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) filed by Geoffrey Spencer Legge (“the Bankrupt”) on 21 June 2006 (“the Application”).

Evidence before the Court

Affidavits

  1. The affidavits before the Court are:

    a)Geoffrey Spencer Legge sworn 12 June 2006 (“the Bankrupt’s affidavit of 12 June 2006”);

    b)Heljo Cameron sworn 10 August 2006;

    c)Heljo Cameron sworn 15 August 2006;

    d)Geoffrey Spencer Legge sworn 29 August 2006 (“the Bankrupt’s affidavit of 29 August 2006”);

    e)Alistair Robert MacKinlay sworn 4 October 2006 (“Mr MacKinlay’s affidavit”);

    f)Heljo Cameron sworn 5 October 2006 – attaching the updated report of the Official Trustee, written pursuant to Rule 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) (“Official Trustee’s Report”)[1], (which supercedes her previous affidavits) (“Ms Cameron’s affidavit”); and

    g)Alan Francois Carles sworn 1 November 2006 (“Mr Carles’ affidavit”).

    [1] Attached as Annexure “A” to Ms Cameron’s affidavit.

Submissions

  1. The written submissions before the…

Continue reading Legge v Mackinlays

Sign in free to access the full text

Details
AGLC
Legge v Mackinlays [2007] FMCA 223
Case
[2007] FMCA 223
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by the Official Trustee in Bankruptcy, the Applicant, to have certain assets of the bankrupt, Mr Legge, the Applicant, released from the estate. The Respondent, Mr Legge, argued that the assets in question were not part of the bankrupt estate and should not be subject to the application. The case was heard in the Federal Circuit Court of Australia.

The central legal issue that the Court had to decide was whether the assets in question were indeed part of the bankrupt’s estate and therefore subject to the application. The Court also had to consider the interpretation of certain provisions of the Bankruptcy Act, specifically section 109, in relation to the priority of costs. The Court was required to determine if the costs of the Respondent and the Official Trustee should be taxed and paid out of the Bankrupt’s estate in the priority fixed by section 109(1)(a) of the Bankruptcy Act.

In delivering the judgment, the Court found that the assets in question were not part of the bankrupt’s estate and therefore not subject to the application. The Court also found that the costs of the Respondent and the Official Trustee should be taxed and paid out of the Bankrupt’s estate in the priority fixed by section 109(1)(a) of the Bankruptcy Act. The Court reasoned that the provisions of the Act should be interpreted in a way that gives effect to the intention of the legislature and that the costs should be prioritised in the manner provided by the Act. The Court dismissed the Application and ordered that the costs of the Respondent and the Official Trustee be taxed and paid out of the Bankrupt’s estate in the priority fixed by section 109(1)(a) of the Bankruptcy Act.

Orders

Orders of the court

1.

The Application be dismissed.

2.

The costs of the Respondent and the Official Trustee be taxed and paid out of the Bankrupt’s estate in the priority fixed by s.109(1)(a) of the Bankruptcy Act.

Background

Background to the litigation

Full text does not contain this section.

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.