McEntee v Khoury

[2006] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McENTEE & ANOR v KHOURY [2006] FMCA 696

BANKRUPTCY – Application for appointment of Trustee under s.50 of the Bankruptcy Act 1966 (Cth).

Bankruptcy Act 1966 (Cth), s.50

Applicants: LEONE McENTEE & PAUL GERLACH

Respondent: GEORGE KHOURY

File number: SYG1358 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 11 May 2006

Delivered at: Sydney

Delivered on: 11 May 2006

REPRESENTATION

Solicitors for the Applicants: Ms K Britton of Sally Nash & Co

Respondent: No appearance by or on behalf of the respondent

ORDERS

1. Scott Darren Pascoe be appointed Trustee of the property of George Khoury pursuant to s.50 of the Bankruptcy Act 1966 (Cth).

2. The Trustee’s control of the estate of the debtor is to cease upon

   
   

   30 June 2006 unless extended by order of this court upon application served personally upon the debtor not less than two business days prior thereto.

3. Service of the Notice of Motion today be dispensed with.

4. Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1358 of 2006

LEONE MCENTEE & PAUL GERLACH

Applicants

And

GEORGE KHOURY

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. This was an urgent application brought by the solicitors for the applicant creditors’ seeking the following interim orders pursuant to s.50 of the Bankruptcy Act 1966 (Cth) (“the Act”):

   a)That this application be filed in Court and heard instanter.

   b)The Court give directions to disburse with service of this application or abridge service.

   c)That an order under s.50 of the Act be made against the estate of George Khoury.

   d)Scott Darren Pascoe be appointed Trustee pursuant to s.50 of the Act.

   e)The Court to direct a date for the Trustee’s control of the debtor’s properties to end.

   f)Costs reserved.

   g)Such further orders as the Court deems fit.

2. The applicant creditors rely on the following information:

   a)Affidavit of Sally Susan Nash, solicitor, sworn on 9 May 2006;

   b)Affidavit of service of bankruptcy notice of Joseph Khoury, licensed commercial agent, sworn 5 May 2006.

Reasons

1. I have read the affidavit of Sally Susan Nash, sworn on 9 May 2006 (“affidavit of Ms Nash”) together with the attachments to that affidavit and heard short submissions from Ms K Britton, solicitor, representing the firm of Sally Nash & Co. I am satisfied that the conditions of s.50 of the Bankruptcy Act 1966 (Cth) have been complied with and it is appropriate that I make orders in the terms handed up by the applicants’ solicitor incorporating a termination date for the Trustee, which is approximately five (5) weeks from which the time limits contained in the bankruptcy notice expire.

2. The applicant creditors have a judgment against the respondent debtor for a sum of $296,640.75 made in the District Court of New South Wales, Sydney Registry, file number 4549 of 2005, dated 21 October 2005.  The certificate of judgment issued on 5 April 2006 by the Registrar of the District Court of New South Wales for Sydney indicates that no amount has been paid in respect of the judgment (Annexure “A” of the affidavit of Ms Nash).

3. The respondent appears to have had an interest in two parcels of land identified by Certificates of Title in Annexure “D” and “E” of the affidavit of Ms McNash.  There is evidence in the form of registered transfers discharging mortgages that the respondent has disposed of his interest in these properties and is entitled to receive an estimated amount of at least $118,000 on the disposal of one of those parcels. (Annexures “F” and “J” of the affidavit of Ms McNash)

4. There is evidence at the time of disposal of the respondent’s interest in these parcels of land that he was aware of a decision of the Consumer Trader and Tenancy Tribunal (“CTTT”) in respect of defective building work.  That decision was made on 5 September 2005.  I am satisfied that both transfers were made after the quantification of the damages owed by the debtor were determined by the CTTT.

5. In respect of the creditors in the matter of George Khoury, I will make an order under s.50 of the Act appointing Scott Darren Pascoe, who is a registered trustee, to take control of the estate of George Khoury. Scott Darren Pascoe has executed consent to act as trustee.

6. I believe that interim control should be provided until the bankruptcy notice is either complied with or the act of bankruptcy occurs and the appropriate final orders are made by the Court.  The bankruptcy notice was issued on 26 April 2006 and served on the respondent debtor on

   
   

   5 May 2006 as evidenced by the affidavit sworn, Joseph Khoury, commercial agent.  The 21 days to provide for payment of the outstanding moneys identified in the bankruptcy notice expires on

   
   

   23 May 2006.

7. I am satisfied that a debt exists as determined by a judgment of the District Court in New South Wales. I am also satisfied that the respondent debtor has been dispensing of his interest in property after it became apparent that he owed a considerable debt as determined by the CTTT. Based on the evidence before me, I am satisfied that I can make the orders under s.50 as sought by the applicant creditors’ solicitor.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  17 May 2006