Macks, Peter Ivan as Trustee of the Bankrupt Estate of Donka Gorcilov v Ekena Pty Ltd

[1998] FCA 395

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 7074 of 1998

BETWEEN:

PETER IVAN MACKS
AS TRUSTEE FOR THE BANKRUPT ESTATE OF
DONKA GORCILOV
APPLICANT

AND:

EKENA PTY LTD
FIRST RESPONDENT

MACQUARIE INVESTMENT
MANAGEMENT LIMITED
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 APRIL 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

On 17 March 1998 the applicant was appointed the trustee of the bankrupt estate of Donka Gorcilov on her own petition.  The bankruptcy occurred on 20 February 1998.  By application dated 2 April 1998 the applicant brought proceedings against Ekena Pty Ltd (“Ekena”) and a financial institution for declarations against Ekena under ss 116, 120 and 121 of the Bankruptcy Act 1966 (Cth).  Those proceedings of course are in only their incipient stages but it is apparent from the affidavit material which has been filed that the applicant considers, and there is some material upon which the applicant has the belief, that assets of the bankrupt have been realised in a period of time relevant to the date of the bankruptcy and that the proceeds of those realisations have been applied to the detriment of, that is out of, the estate of the bankrupt, substantially but not exclusively through Ekena.

By that application the applicant also sought a Mareva order both in respect of a particular account at the Macquarie Cash Management Trust and generally.  I made two separate orders first affecting that particular asset, and secondly generally, on 2 April 1998 on an interim basis.  On 7 April 1998 I continued that order on an interim basis and gave directions with a view to hearing the application on an interlocutory basis today.  That order is presently maintained, subject to it having been varied this morning by consent by permitting the release of a sum of money from the Macquarie Cash Management Trust account for the purposes of Ekena being able to procure legal funding in relation to the conduct of these proceedings.

At the commencement of the hearing today Mr Clayton QC raised two matters.  The first was that a document being a photocopy of an affidavit apparently sworn by a Mr Tomaras had not in fact been sworn by him.  That document does not appear to itself have been filed and the copy available to the Court and loose within the Court file (apparently there by 7 April 1998) is only a photocopy.  The transcript records the discussion as to that document.

The second matter Mr Clayton indicated was that, in the short period of time that his client Ekena had had to consider the matter and the very extensive affidavit material filed on 8 April 1998, his client was not in a position to have responded to that material or to fully argue on an interlocutory basis whether or not the Mareva injunctions should continue.  Purely for that reason his client has taken the view that it does not presently oppose the continuation of the interim Mareva injunction.  The orders made give liberty to apply.  Accordingly the orders of 2 and 7 April 1998 are preserved and that liberty may be exercised on appropriate notice as the order prescribes.

Mr Clayton however did seek, purely on the basis of the material filed on behalf of the applicant, an order that the Mareva orders so made should be restricted to the sum of $130,000.  It was not put, and there is no material presently to suggest, that it should so be restricted by any reason of need on the part of Ekena or for any considerations going to the balance of convenience.  The contention is simply on the basis that the material filed on behalf of the applicant indicates that, at best from the applicant’s position, Ekena was an arm's length company which had received a loan of $130,000 from the bankrupt in about August 1997, with which it had purchased a taxi licence which Ekena had more recently sold for $156,000.

Having heard Ms Maharaj for the applicant in response, and of course without forming any firm and final views on what the material establishes, in my view there is material in the affidavits filed on behalf of the applicant which indicates that the role of Ekena may be a greater one than that which Mr Clayton said was the only available and, from his client's point of view, worst case scenario of Ekena in relation to the bankrupt.  I do not think it is necessary nor desirable to refer in detail to that material.  Ekena has not had an opportunity of fully considering it or addressing it.  It may ultimately prove not to be the case.  However, on the material presently before me I think it is capable of going beyond Ekena being an arm's length company from the bankrupt or her family, and beyond Ekena being simply the recipient of $130,000 by way of loan from the bankrupt or through the bankrupt or through others on her behalf dealing with her assets.

Accordingly I decline the application that Mr Clayton has made today.  The result will be that the orders of the Court made on 7 April 1998 and which were to expire at 5.00 pm today are now to continue in their terms subject, to the one variation which was agreed by consent this morning, to which I have referred.  Those orders preserve liberty to apply to Ekena on short notice.

I have considered whether those orders ought to be to a particular date or until further order.  Given the events in the conduct of this matter to the present time and the prospect, from the point of view of the Court, of this matter being heard in the relatively near future, in my view it is appropriate for the order to be made until further order and I so direct.

I will now hear counsel on the future conduct of the matter generally.  In addition, of course, the opportunity remains available to Ekena to file such material as it may be advised and to apply on the liberty to apply to vary those orders or to have them heard or discharged, on which occasion they will be determined in the nature of an interlocutory application for the first time.  That is, there will be no basis of Ekena seeking to discharge an interlocutory order when and if it seeks to have the orders varied in any way.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:            22 April 1998

Counsel for the Applicant:	Mr D Clayton QC with him Mr A Tropeano
Solicitors for the Applicant:	Antonio Tropeano
Counsel for the Respondents:	Ms S Maharaj with her Mr B Roberts
Solicitors for the Respondents:	Kelly & Co
Date of Hearing:	9 April 1998
Date of Decision:	9 April 1998