Official Receiver v Prince

[2006] FMCA 1917

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v PRINCE [2006] FMCA 1917

BANKRUPTCY – Application for payment of “after-acquired” property – insurance policies.

Bankruptcy Act 1966 (Cth), ss.5(1), 30(1), 58, 58(1)(b), 58(6), 116, 116(1)(a), 116(2)(b) and (2)(ca)
Bankruptcy Regulations 1996 (Cth), regs.6.03 and 6.04

McQuarrie v Jaques (1954) 92 CLR 262

Applicant: OFFICIAL RECEIVER

Respondent: KIMBERLEY JANE PRINCE

File Number: PEG 279 of 2006

Judgment of: Lucev FM

Hearing date: 15 December 2006

Date of Last Submission: 15 December 2006

Delivered at: Perth

Delivered on: 15 December 2006

REPRESENTATION

Counsel for the Applicant: Mr A F Carles

Solicitors for the Applicant: Carles Solicitors

Respondent: No Appearance

ORDERS

1. The Respondent pay to the Applicant the sum of $26,200.00 representing a portion of the proceeds received by the Applicant on 22 October 2004 pursuant to the contents insurance policy held by the Respondent in respect of the property at 47 Driffield Street, Queenstown, Tasmania.

2. The Respondent pay to the Applicant the sum of $19,500.00 representing the net proceeds received by the Respondent on

   
   

   25 November 2004 pursuant to the building insurance policy held by the Respondent in respect of the property at 47 Driffield Street, Queenstown, Tasmania.

3. The Respondent pay to the Applicant interest on the sum of $26,200.00 from 22 October 2004 and on the sum of $19,500.00 from

   
   

   25 November 2004 until payment or judgment at the rate of 6% per annum.

4. The Respondent pay the Applicant’s costs of the action fixed in the sum of $1755.00 plus GST.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 279 of 2006

OFFICIAL RECEIVER

Applicant

And

KIMBERLEY JANE PRINCE

Respondent

REASONS FOR JUDGMENT

Background

1. This is an Application by the Official Receiver for and on behalf of the Official Trustee in Bankruptcy (“the Applicant”) seeking orders for the Respondent, Kimberley Jane Prince, to pay to the Applicant under s.30 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) the following:

   a)the sum of $26,200.00 representing a portion of the proceeds received by the Respondent on 22 October 2004 pursuant to the contents insurance policy; and

   b)the sum of $19,500.00 representing the net proceeds received by the Respondent on 25 November 2004 pursuant to the building insurance policy.

Evidence before the Court

1. The following affidavits are relied upon by the Applicant:

   a)Jacqueline Riley sworn 26 October 2006;

   b)Andrew Charles Hunt, (Affidavit of Service) sworn 7 December 2006; and

   c)Christopher Michael Donoghue sworn 13 December 2006.

2. The Respondent became bankrupt on 23 May 2003.

Relevant legislation

1. Section 30(1) of the Bankruptcy Act is in wide terms and gives the Court power to make the orders sought.

2. Pursuant to s.58(1)(b) of the Bankruptcy Act, “after-acquired” property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee. “After –acquired property” is defined in section 58(6) of the Bankruptcy Act as:

   ...in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of bankruptcy, being…