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
The Application be dismissed.
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
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
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
The written submissions before the…
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- Legge v Mackinlays [2007] FMCA 223
- Case
- [2007] FMCA 223
- Decision Date
CaseChat Overview and Summary
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
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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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