McKinnon v Pattison (No.2)

[2009] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McKINNON & ANOR v PATTISON (No.2) [2009] FMCA 696

BANKRUPTCY – Whether time extended for notice of taxation.

Bankruptcy Act 1966 (Cth) ss.33(1)(c), 64ZBA, 162, 167
Supreme Court Act 1986 (Vic) s.101
Penalty Interests Rate Act 1983 (Vic) s.2
Bankruptcy Regulations 1996 (Cth) r.8.09

Aparatne v Tredula VG 7894 of 1998 (North J, unreported 18/12/1998)
Vince v Sellars (2004) FMCA 564

First Applicant: JEANETTE BEVERLY McKINNON

Second Applicant: DONALD NEIL McKINNON

Respondent: PAUL ANTHONY PATTISON

File Number: MLG 369 of 2009

Judgment of: Phipps FM

Hearing date: 19 June 2009

Date of Last Submission: 19 June 2009

Delivered at: Melbourne

Delivered on: 19 June 2009

REPRESENTATION

The Applicants: Appearing in person

Counsel for the Respondent: Mr M. Black

Solicitors for the Respondent: TurksLegal

ORDERS

1. The application filed 6 April 2009 is dismissed.

2. The Applicant’s pay the Respondent’s costs of the Application to Review fixed at $5,000 and the costs of $4,710 ordered by Registrar Moore on 25 May 2009.

3. The operation of order 2 be stayed for 30 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 369 of 2009

JEANETTE BEVERLY MCKINNON & DONALD NEIL McKINNON

Applicants

And

PAUL ANTHONY PATTISON

Respondent

REASONS FOR JUDGMENT

1. The applicants Mr and Mrs McKinnon apply for an extension of time in which they can give notice to a taxing officer to have their trustee in bankruptcy costs and expenses taxed.  The applicants were made bankrupt by sequestration order made on 26 August 2005.  The respondent Mr Pattison is the trustee in bankruptcy.

2. In December of last year, Mr Pattison, pursuant to s.64ZBA of the Bankruptcy Act 1966 (Cth) set in train the process by which the creditors of the estate might pass a resolution approving the trustees' remuneration without a meeting being held. Under s.162 of the Bankruptcy Act, the remuneration of the trustee may be fixed by resolution of creditors and s.64ZBA provides a process by which that resolution can be passed without the need for a meeting to be held.

3. There are two creditors, according to Mr Pattison. They are the Commonwealth Bank of Australia and the Australian Taxation Office. There is no doubt about the Commonwealth Bank of Australia as a creditor because it obtained a judgment in the Supreme Court of Victoria on 27 June 2001 for an amount of $222,985.29. By the time a bankruptcy notice was issued on the 10 October 2009, interest had accrued of $59, 009.06. That is interest calculated in accordance with s.101 Supreme Court Act 1986 (Vic) at the rate prescribed by s.2 Penalty Interests Rate Act 1983 (Vic). 

4. The Australian Taxation Office is accepted by Mr Pattison at $20,951.  Ms McKinnon, who speaks for both applicants, says that they dispute that amount, but the trustee has accepted it.  He has received approval of the resolution approving his remuneration.  He has received that approval from both Commonwealth Bank of Australia and the Australian Taxation Office.  The amount is $137,000.

5. On 8 December Mr Pattison sent the applicants,…