Official Trustee and Juratowitch as trustee Of the Bankrupt Estate Of the Husband & Anor

[2011] FamCA 908

FAMILY COURT OF AUSTRALIA

OFFICIAL TRUSTEE & JURATOWITCH AS TRUSTEE OF THE BANKRUPT ESTATE OF THE HUSBAND AND ANOR [2011] FamCA 908

FAMILY LAW – Both husband and wife are bankrupt – Intervenor is solicitor as to costs – Case management and jurisdictional orders

Family Law Act 1975 (Cth)

APPLICANT: OFFICIAL TRUSTEE

RESPONDENT: DANIEL PETER JURATOWITCH AS TRUSTEE OF THE BANKRUPT ESTATE OF THE HUSBAND

INTERVENOR: MARSHALLS & DENT LAWYERS

FILE NUMBER: MLC 1924 of 2010

DATE DELIVERED: 24 NOVEMBER 2011

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 24 NOVEMBER 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melelli

SOLICITOR FOR THE APPLICANT: BDO Accountants

COUNSEL FOR THE RESPONDENT: Mr Peterson

SOLICITOR FOR THE RESPONDENT: Official Receiver

COUNSEL FOR THE INTERVENOR: Mr McBride

SOLICITOR FOR THE INTERVENOR: Marshalls & Dent

Orders

IT IS ORDERED:

1. THAT all extant applications be adjourned for further hearing and submissions to 10.00 a.m. on Friday 24 February 2012.

2. THAT on or before 15 February 2012 the solicitors, Harwood Andrews, now engaged by the wife personally make, file and serve written submissions as to jurisdiction issues and as to their ability to legally represent the wife in these proceedings, such documents to be served upon the other parties and upon BDO, Chartered Accountants, at Level 30, 525 Collins Street, Melbourne, 3000.

3. THAT all other parties be reserved the right to make, file and serve any written submissions in response within three (3) working days of receipt of the submissions filed by or on behalf of the wife.

4. THAT the wife’s solicitors now engaged by her, and subject to any confirmation of their right of appearance and representation of her, file with the Court a document confirming the consent and understanding of the Official Trustee of the wife to her intended and ongoing legal representation.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties and to BDO, Chartered Accountants.

6. THAT all questions of costs of or on behalf of all parties and/or the wife be adjourned as a matter to be heard and considered on the adjourned hearing date before Young J.

IT IS NOTED that publication of this judgment under the pseudonym Jenkins & Stewart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1924 of 2010

OFFICIAL TRUSTEE

Applicant

And

DANIEL PETER JURATOWITCH AS TRUSTEE FOR THE BANKRUPT ESTATE OF THE HUSBAND

Respondent

And

MARSHALLS & DENT LAWYERS

REASONS FOR JUDGMENT

1. The matter of the Official Trustee & the Husband & Marshalls & Dent Lawyers was last before me on 10 October 2011.  It was then adjourned to this day, and the husband had then advised the Court that he remained considering his commercial options, which then included bankruptcy.  The matter is before me today and Mr Melilli of Counsel has sought leave on behalf of the wife and via solicitors Harwood Andrews to appear on her behalf, notwithstanding that the Official Trustee of her bankruptcy is BDO Accountants of 525 Collins Street, Melbourne.  Those accountants have not appeared and are not at Court and subsequently at my request Counsel has been able to contact their representative.  They purportedly advised that they have no objection to the wife on limited issues retaining solicitors and Counsel to argue matters within the jurisdiction of this Court and inclusive of a division of any remaining superannuation entitlements of the parties. 

2. The intervenor has not objected to the presence of Mr Melilli at the bar table on behalf of the wife.  However, there are a number of likely complex legal issues which may arise.  They include the wife’s ability as a bankrupt person to engage and instruct solicitors and thereafter to engage Counsel.  How the wife could facilitate or pay for that representation within the structure of the bankruptcy is a matter currently unknown to the Court.  Mr Melilli has advised the Court that phone calls have been made to a representative of BDO Accountants.  It may be that they have either consented to or otherwise acquiesced to the proceedings in this Court without the involvement of themselves.  That in itself raises an issue of the jurisdiction of this Court, of who can appear before this Court in a like matter and of the ability to make orders for and on behalf of the wife in the new circumstances she now presents to the Court.  Otherwise there are enforcement issues and uncertainty as to how any order that might be made on a discretionary basis as to costs could ever be applied or enforced, if that be required. 

3. The reality of today is that the husband has now entered into a scheme of bankruptcy, and Mr Peterson, who appears as an accountant and on behalf of the Official Trustee representing the husband, has sought an adjournment.  I will grant that adjournment, and that is now by consent, and I will do so until 24 February 2012.  That adjournment means that in the interim, all parties, and in particular the solicitors now engaged by the wife, can turn their mind to jurisdictional issues and the wife’s ability to act and retain solicitors, albeit that she does not pay for their services directly, but there might be some other benefactor or other arrangement for payment which presently is not disclosed to the Court.

4. I will require written submissions to be filed by and on behalf of the wife by 15 February 2012.  Those submissions must be served upon both the Intervenor and the Official Receiver now acting for and on behalf of the husband.  Both of the other parties have a right to respond within three working days to those written submissions and file any other submissions which they may consider to be appropriate to the issues before the Court. 

5. I accept that the purpose of the adjournment is at least to enable the husband’s Official Receiver to investigate his assets and superannuation and to have a proper understanding of his financial circumstances.  That is important in the context that there remains before this Court a claim by the Intervenor and otherwise the wife seeks an appropriate division of the superannuation entitlements of the parties that may be quarantined from any claim of the Official Receiver and may remain an asset or financial entitlement of the parties or one or other of them.

6. Mr Peterson has provided a Certificate of Appointment of Trustee.  The trustee is Mr Daniel Peter Juratowitch.  That document is marked exhibit “H1” and will remain upon the court file.  For the purposes of these orders, I will endorse the address of the husband as care of the Official Receiver, Post Office Box 232 Collins Street West, Melbourne, 8007. 

7. I comment only that the continuation of legal proceedings is always at a financial cost, and these parties and both appointed Official Receivers need carefully and closely look at the financial circumstances and cost and what is available in this case, and likewise, the Intervenor must carefully balance all of the costs, the likelihood of retaining or enforcing any order for costs and the general commercial issues.

8. I will pronounce orders in line with these short ex tempore reasons which have been primarily delivered to focus the attention of all parties on the issues of the power and jurisdiction of the Court, the proper procedures and the commercial and financial aspects of this matter.  I will have these reasons transcribed, placed upon the court file and made available to all parties.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

1. Now, as to the issue of costs of this day, I am inclined to reserve the question to the adjourned hearing day. 

ORDER DELIVERED

I certify that the preceding nine
(9) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 24 November 2011

Associate: ……………………………………………………………

Date:  …………………………………………………………………