Lingard, Re J. Ex Parte QLD Cement Distributers

[1986] FCA 409

C A T C H W O R D S

BANKRUPTCY - security provisions - non-compliance by trustee -

whether reglstration should be suspended	- whether non-complying
trustee should have new trusteeship.

Bankruptcy Act, 1966 ss.l55(5A), 155(5C), 156A(3)(a), 160

Re: John Lmsard

Ex parte: Queensland

Cement Distributors

QLD P 731 of 1986

PINCUS J.

BRISBANE

1 SEPTEMBER 1986

c

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD P 731 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	1

FE: JOHN LINGARD

M PARTE: f&JEENSLAND CEMEWT DISTRIBUTORS

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	1 SEPTEMBER 1986
WHEXE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. I find the act of bankruptcy alleged in the petition.

2. I am satisfied of proof of the other matters in which the act requires proof.

3. I note that Mr. I. Worrell, registered trustee, has

conskqd-ed to act as trustee of the estate of the

debtor.

4.	I make a sequestration order against the estate of
the debtor and order that the costs f the
petitioning creditor of and incidental to the
petition be taxed and paid in accordance with the

Act.

5.	I declare that the said I. Worrell is, by force of
s.l56A(3)(a) of the Act, made the trustee of the

estate of the debtor notwithstanding the

non-compliance by the said I. Worrell with

s.l55(5A) of the Act.

6. I order that the application of the registrar against Mr. Worrell under s.l55(5C) be adjourned

until Monday, 15 September 1986 at 10.15 a.m.

m: Settlement and entry of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

...

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD P 731 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: JOHN LINGARD

Ex PARTE: OUEENSLAND CEMENT DISTRIBUTORS

PINCUS J. 1 SEPTEMBER 1986

EX TEMPORE REASONS FOR JUDGMENT

There are two matters before me. One 1 s a petition for

a sequestratlon order, no. 731 of 1986, against John Lingard. The

Registrar has also brought before me a viva voce appllcation under s.l55(5C) of the Bankruptcy Act.

The latter appllcation is founded upon evidence that the

trustee (who has consented to act in the matter of John Linqard,

the consent having been flled on 8 July 1986) has not complied yet

with the provislons of s.l55(5A) inserted by Act No. 21 of 1985.

There have apparently been numerous instances of such

non-compliance by other trustees. It is suggested that the

appropriate course is to suspend the registration of the trustee,

Mr. Worrell, for sufficient time to allow him to fulfil his

obligations under s.l55(5A). The failure of Mr. Worrell to comply

with these provisions does not seem	to be accompanied by	any good
excuse.

L .

The circumstances, however, seem to me such that I

should give him more time to do so, in the sense that, without formally extending the time mentioned in s.l55(5A), I propose to adjourn the Registrar’s appllcation until Monday, 15 September

1986, at 10.15 a.m.

Mr. Whitman, who has appeared for the trustee, Mr.

Worrell, has pointed out that compliance with the relevant

provision is at this stage not a matter which is wholly within Mr.

Worrell’s control. It depends upon securing the r ady

co-operation of the State stamp dutles authorities and also the

co-operatlon of the surety, Suncorp. Nevertheless, it appears to

me that, If the matter is not attended to by 15 September 1986,

prima facie It will be necessary to suspend Mr. Worrell‘s

reglstration. Of course, lt is clear that there has been ample

tlme to comply wlth s.l55(5A) already.

The other matter which has glven me pause is whether, in

n e w of Mr. Worrell’s non-compllance with s.l55(5A), he should be

allowed to become the trustee of the estate of Mr. Lingard. It 1 s submltted on behalf of Mr. Worrell by Mr. Whitman that I have no

discretion in the matter and that, if a sequestration order is

made, then Mr. Worrell must become the trustee because he has

consented and hls consent has not been revoked. That appears to

be correct, nor does it seem possible to make an order,

consistently with s.l55(5C), suspending the trusteeship only	as
regards the estate of Mr. Linqard.

3 .

Since the circumstances are not the fault of the

petitioning creditor, it appears that there is no practical choice

other than to make a sequestration order the result of which will

be that Mr. Worrell will become the trustee.

Mr. Allen has drawn attention to s.160 which would have

the effect of makmg the Official Trustee the trustee of this

estate during any period of suspension under s.l55(5C). I am

concerned about the complications which are likely to ensue, a It

seems to me, in respect of the states presently being

administered by Mr. Worrell if there	1 s an interregnum and	I am
anxious to avoid that result.

However, it does not seem likely that that result can be

avolded if matters are not put in order fairly soon, 1.e. by

Monday, 15 September. Therefore the orders which I shall make

are :

In the creditor’s petitlon no. 731 of 1986 agalnst John

Lmqard, I find	the	act	of	bankruptcy	alleged	in	the
petition;

I am satisfied of proof of the other matters	of which the Act
requires proof;

I note that Mr. I. Worrell, registered trustee, has consented to act as trustee of the estate of the debtor;

.

Y'

4.

I make a sequestration order against the estate of the debtor

and order that the costs of the petitioning creditor of and

incidental to the petition be taxed and paid in accordance

with the Act.

Also, in the same matter, I make a declaration that the

said I. Worrell is by force of s.l56A(3)(a) made the trustee of

the estate of Mr. Lingard, notwithstanding his non-compliance with

s.l55(5A) of the Act. As to the application of the Registrar

against Mr. Worrell under s.l55(5C), I order that that appllcatlon

be adjourned until Monday, 15 September 1986 at 10.15 a.m.

certify t5at t!lis and the p l e c d r g

p;ps zrz G trl-:.:e ccpy of r,?z=xns for

ludgi;lc-n: i;-..--i,l of Kis i-.xcur

Mr. Justire Pincus LjlL &/G-

I Assoclate

Dated 1 Sy4z-h I l?gG,