O'Brien v Sheahan

[2004] FCA 608

FEDERAL COURT OF AUSTRALIA

O’Brien v Sheahan [2004] FCA 608

BANKRUPTCY – trustee – validity of appointment of registered trustee – consent to act – registered trustee filed Notice of Objection to discharge – whether at time of objection, registered trustee was in law trustee of bankrupt estate – certificate of appointment issued – registered trustee not notified in writing of appointment – whether registered trustee informed Official Receiver within 10 days of appointment of acceptance to act – whether formal defect invalidated appointment.

Bankruptcy Act 1966 (Cth)

Nilant v Macchia (2000) 104 FCR 238 cited
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 cited

CHRISTOPHER JOHN O’BRIEN v JOHN SHEAHAN

S 7006 of 2003

LANDER J
ADELAIDE
14 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7006 OF 2003

BETWEEN:	CHRISTOPHER JOHN O'BRIEN APPLICANT
AND:	JOHN SHEAHAN RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	14 MAY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7006 OF 2003

BETWEEN:	CHRISTOPHER JOHN O'BRIEN APPLICANT
AND:	JOHN SHEAHAN RESPONDENT

JUDGE:	LANDER J
DATE:	14 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The application in this matter was heard simultaneously with a similar application in action number S7005 of 2003, Birdseye v Sheahan [2004] FCA 609.

2. The resolution of this matter will largely resolve the matters in dispute in the matter of Birdseye v Sheahan.

3. The applicant seeks:

   ‘1.A declaration that as at 3 December 1999 the Respondent was not the Trustee of the Applicant’s estate.

   2.A declaration that as at 6 December 1999 the Respondent was not the Trustee of the Applicant’s estate.

   3.A declaration that no valid Notice of Objection was served on the Applicant.

   4.A declaration that no valid Notice of Objection was filed by the Official Receiver.

   5.A declaration that as at 3 December 1999 there was not in existence a valid Certificate of Appointment in favour of the Respondent in relation to the Applicant’s estate.

   6.A declaration that the Certificate of Appointment in favour of John Sheahan dated 6 December 1999 is void and/or of no effect.

   7.A declaration that the Respondent is not the Trustee in Bankruptcy of the Applicant’s bankrupt estate.

   8.A permanent injunction restraining the Respondent from further acting or purporting to act as the Trustee in Bankruptcy of the Applicant’s bankrupt estate.

   9.A declaration from Mr John Sheahan is deemed to have declined the appointment as the Trustee in Bankruptcy of the Respondent’s bankrupt estate.’

4. The applicant filed a debtor’s petition dated 25 October 1996.  On 5 November 1996, on the petition of the Deputy Commissioner of Taxation, Mansfield J made a sequestration order in relation to the estate of the applicant.  On the same day, again on the petition of the Deputy Commissioner…