Makinna Pty Ltd (in liq) v Trives

FEDERAL COURT OF AUSTRALIA

Makinna Pty Ltd (in liq) v Trives [2016] FCA 1247

File number(s):

NSD 1493 of 2016

Judge(s):

JAGOT  J

Date of judgment:

11 October 2016

Catchwords:

BANKRUPTCY AND INSOLVENCY – protection of debtor’s property pending sequestration order

Legislation:

Bankruptcy Act 1966 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

Deputy of Commissioner of Taxation v Clyne (1983) 50 ALR 118

Date of hearing:

11 October 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Applicant:

Mr S Golledge

Solicitor for the Applicant:

Matthews Folbigg Lawyers

Counsel for the Respondent:

The respondent appeared in person

ORDERS

NSD 1493 of 2016

BETWEEN:

MAKINNA PTY LTD (IN LIQUIDATION)

Applicant

AND:

SIMON EDWARD TRIVES

Respondent

JUDGE:	JAGOT  J
DATE OF ORDER:	11 OCTOBER 2016

THE COURT DIRECTS THAT:

1.Pursuant to s 50 of the Bankruptcy Act 1966 (Cth), Barry Anthony Taylor take control of the respondent debtor’s property including the proceeds of sale of the land comprised in certificate of title identifier 41/285800 being the land situated at 3 Caramar Close, Picton, New South Wales 2571, currently held in the amount of $541,045.51.

2.Such control cease on the making of a sequestration order in respect to the respondent or earlier order of the Court.

THE COURT ORDERS THAT:

3.The respondent pay the applicant’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. This is an application for directions pursuant to s 50(1) of the Bankruptcy Act 1966 (Cth) (the Act) which provides that at any time after a bankruptcy notice is issued or a creditor’s petition is presented in relation to a debtor, but before the debtor becomes a bankrupt, the Court may direct the Official Trustee or a specified registered trustee to take control of the debtor’s property and make any other orders in relation to the property. 

2. The circumstances in which the application is brought by the liquidator of Makinna Pty Ltd (in liq) are explained in the evidence which has been tendered in support of the application and in the written submissions filed on behalf of the applicant. 

3. In short, Mr Trives is formerly the sole director and shareholder of Makinna Pty Ltd, now in liquidation. The company was wound up on an application for an outstanding tax debt by the Deputy Commissioner of Taxation.  The books and accounts of the company showed that Mr Trives was indebted to the company in the amount of $540,182.89.  Demands for payment were made by the liquidator on 6 November 2013, 28 November 2013 and 23 May 2014, but were not answered.  Examination summonses were issued, including to Mr Trives, and evidence was given on examination on 15 August 2016.

4. The liquidator then moved to recover the outstanding loan amount from Mr Trives in the District Court of New South Wales, commencing…