Mango Boulevard Pty Ltd v Whitton - [2011] FCA 418

FEDERAL COURT OF AUSTRALIA
Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2011] FCA 418

Citation: Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2011] FCA 418

Parties: MANGO BOULEVARD PTY LTD ACN 101 544 601 and BMD HOLDINGS PTY LIMITED ACN 010 093 349 v ROBERT WILLIAM WHITTON, RICHARD WILLIAM SPENCER and SILVANA PEROVICH

File number: VID 1183 of 2010

Judge: LOGAN J

Date of judgment: 29 April 2011

Catchwords: BANKRUPTCY AND INSOLVENCY – composition meetings – directions sought by trustee about whether to call a meeting of creditors to consider composition proposals of the second and third respondents – where trustee had not completed composition reports – whether meeting was to be postponed until after substantive hearing – substantive proceeding involves challenge to removal of former trustee and challenge to extension of bankruptcy period upon the objection of new trustee – whether Court had a discretion to order that such a meeting not occur until after hearing and determination of substantive proceeding –where outcome of substantive proceedings may render meeting and any resolution for annulment futile – Court has discretion to order that a composition meeting not occur – meeting postponed until after hearing of the substantive proceeding

Legislation: Bankruptcy Act 1966 (Cth) ss 30, 58, 73, 73A, 74, 76B, 134, 139U, 139WA, 149, 149D, 153A, 154, 178, 222

Cases cited: Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 cited
Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 cited
In re J Burn Ex parte E N de V Dawson, H T McClennan, and The Trustee [1932] 1 Ch 247 considered
Quinn v Official Trustee in Bankruptcy (1996) 63 FCR 136 followed
Arcuri v Jones; in the matter of Arcuri [2003] FCA 68 followed
Re Bendel; Ex parte Bendel and Others v Pattison (1997) 80 FCR 123 considered
Wenkart v Pantzer (2003) 1 ABC (NS) 236 cited
Vale v Sutherland (2009) 237 CLR 638 cited

Date of hearing: 11 April 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 47

Counsel for the Applicants: Mr C Moller

Solicitor for the Applicants: Minter Ellison Lawyers

Counsel for the First Respondent: Mr S Maiden

Solicitor for the First Respondent: James Conomos Lawyers

Counsel for the Second and Third Respondents: Mr FM Douglas QC with Mr DD Keane

Solicitor for the Second and Third Respondents: Delta Law

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

VID 1183 of 2010

IN THE MATTER OF THE BANKRUPT ESTATE OF RICHARD WILLIAM SPENCER AND THE BANKRUPT ESTATE OF SILVANA PEROVICH

BETWEEN:
MANGO BOULEVARD PTY LTD ACN 101 544 601
First Applicant

BMD HOLDINGS PTY LIMITED ACN 010 093 349
Second Applicant

AND:
ROBERT WILLIAM WHITTON
First Respondent

RICHARD WILLIAM SPENCER
Second Respondent

SILVANA PEROVICH
Third Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

29 APRIL 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The First Respondent, in his present capacity as trustee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mango Boulevard Pty Ltd v Whitton

Details

AGLC: Mango Boulevard Pty Ltd v Whitton [2011] FCA 418
Case: [2011] FCA 418
Decision Date: 29 April 2011

CaseChat Overview and Summary

Mango Boulevard Pty Ltd and another (Applicants) sought directions from the Court in relation to a composition meeting that the trustee of the bankrupt estates of the second and third respondents (Respondents) proposed to call. The meeting was intended to consider proposals for a composition of creditors. The trustee had not completed the requisite composition reports. The Applicants sought directions to ensure that the meeting would not be held until the Applicants' substantive proceeding had been heard and determined. The substantive proceeding involved a challenge to the removal of a former trustee and a challenge to an extension of the bankruptcy period. These challenges were raised by the new trustee, who was the first respondent in this application.

The Court had to determine whether it had the discretion to order that the composition meeting not occur until after the hearing of the substantive proceeding. The Applicants argued that if the outcome of the substantive proceeding was unfavourable, the composition meeting and any resolution for annulment would be rendered futile. The Court examined the relevant statutory provisions and case law and found that it did indeed have the discretion to order that the composition meeting not occur until after the substantive proceeding was heard and determined. The Court concluded that the outcome of the substantive proceeding could indeed affect the composition meeting and any resolution for annulment.

Accordingly, the Court ordered that the First Respondent, in his present capacity as trustee, was directed not to hold a meeting of the creditors until not earlier than the hearing and determination of the Applicants' application, subject to such further order as the Court may make in respect of that application. The Applicants were to pay the Respondents costs of and incidental to the application for the transfer of the proceeding. The costs of and incidental to the First Respondent’s application for directions were reserved. Liberty to apply was reserved.

Orders

Orders of the court

1. The First Respondent, in his present capacity as trustee of the bankrupt estates of each of the Second and Third Respondents, is directed not to hold a meeting of their respective creditors under s 73 of the Bankruptcy Act 1966 (Cth) until not earlier than the hearing and determination of the First and Second Applicants’ application herein and subject to such further order as the Court may make in respect of that application.

2. The First and Second Applicants are to pay the Respondents costs of and incidental to the application for the transfer of the proceeding.

3. The costs of and incidental to the First Respondent’s application for directions are reserved.

4. Liberty to apply is reserved.

Note:

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.

Citation:		Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2011] FCA 418
Parties:		MANGO BOULEVARD PTY LTD ACN 101 544 601 and BMD HOLDINGS PTY LIMITED ACN 010 093 349 v ROBERT WILLIAM WHITTON, RICHARD WILLIAM SPENCER and SILVANA PEROVICH
File number:		VID 1183 of 2010
Judge:		LOGAN J
Date of judgment:		29 April 2011
Catchwords:		BANKRUPTCY AND INSOLVENCY – composition meetings – directions sought by trustee about whether to call a meeting of creditors to consider composition proposals of the second and third respondents – where trustee had not completed composition reports – whether meeting was to be postponed until after substantive hearing – substantive proceeding involves challenge to removal of former trustee and challenge to extension of bankruptcy period upon the objection of new trustee – whether Court had a discretion to order that such a meeting not occur until after hearing and determination of substantive proceeding –where outcome of substantive proceedings may render meeting and any resolution for annulment futile – Court has discretion to order that a composition meeting not occur – meeting postponed until after hearing of the substantive proceeding
Legislation:		Bankruptcy Act 1966 (Cth) ss 30, 58, 73, 73A, 74, 76B, 134, 139U, 139WA, 149, 149D, 153A, 154, 178, 222
Cases cited:		Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 cited Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 cited In re J Burn Ex parte E N de V Dawson, H T McClennan, and The Trustee [1932] 1 Ch 247 considered Quinn v Official Trustee in Bankruptcy (1996) 63 FCR 136 followed Arcuri v Jones; in the matter of Arcuri [2003] FCA 68 followed Re Bendel; Ex parte Bendel and Others v Pattison (1997) 80 FCR 123 considered Wenkart v Pantzer (2003) 1 ABC (NS) 236 cited Vale v Sutherland (2009) 237 CLR 638 cited
Date of hearing:	11 April 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicants:	Mr C Moller
Solicitor for the Applicants:	Minter Ellison Lawyers
Counsel for the First Respondent:	Mr S Maiden
Solicitor for the First Respondent:	James Conomos Lawyers
Counsel for the Second and Third Respondents:	Mr FM Douglas QC with Mr DD Keane
Solicitor for the Second and Third Respondents:	Delta Law

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	VID 1183 of 2010

JUDGE:	LOGAN J
DATE OF ORDER:	29 APRIL 2011
WHERE MADE:	BRISBANE