FEDERAL COURT OF AUSTRALIA
Official Trustee in Bankruptcy [2009] FCA 850
Bankruptcy Act 1966 (Cth) ss 30, 134, 156A, 159, 160, 181A, 183
Federal Court (Bankruptcy) Rules 1995 (Cth) r 8.02Re Brian, Muir v Bradley (1984) 3 FCR 91; ref to
Griffin v Triscott (2004) 183 FLR 1; ref toOFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE FOR FIFTEEN ESTATES NAMED IN SCHEDULE A)
NSD 800 of 2009
EMMETT J
7 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 800 of 2009
OFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE FOR FIFTEEN ESTATES NAMED IN SCHEDULE A)
Applicant
JUDGE:
EMMETT J
DATE OF ORDER:
7 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 800 of 2009
OFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE FOR THE 15 ESTATES NAMED IN SCHEDULE A)
ApplicantJUDGE:
EMMETT J
DATE:
7 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This application relates to fifteen bankrupt estates in respect of which Mr David Patrick Watson, a registered trustee, who died on 18 July 2009, was the trustee in bankruptcy. Section 160 of the Bankruptcy Act 1966 (Cth) (the Act) provides that if at any time there is no registered trustee who is the trustee of the estate of a bankrupt, the Official Trustee is, by force of s 160, to be the trustee of the estate. Following the death of Mr Watson, it appears to follow that the Official Trustee became trustee of the fifteen estates.
By the application, the Official Trustee seeks to have Mr Michael Gregory Jones, a registered trustee, appointed as trustee of eleven of the estates and Mr Schon Gregory Condon, also a registered trustee, appointed trustee in respect of four of the estates. Messrs Jones and Condon have consented to being appointed trustee in bankruptcy for the respective estates in question.
Section 159 of the Act affords a procedure whereby a vacancy in the office of trustee in bankruptcy can be filled. Under s 159(1), the creditors may, at a meeting of the creditors, fill any vacancy in the office of trustee. Under s 159(2), an Official Receiver must, on the requisition of a creditor, summon a meeting of creditors for the purpose of filling such a vacancy. Relevantly for present purposes, s 159(3) provides that, for the purposes of s 159, an office of trustee is deemed to be vacant, notwithstanding that it is for the time being filled by the Official Trustee by reason of the operation of s 160.
A possible alternative procedure is afforded by s 181A of the Act. Under s 181A(1), the current trustee of a bankrupt’s estate may, with the written consent of another trustee…
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- Case
- [2009] FCA 850
- Decision Date
CaseChat Overview and Summary
The court considered the evidence presented, including the bankrupt's financial disclosure statement and any additional information provided by the Official Trustee. The court assessed the extent of the bankrupt's non-disclosure and the implications of such non-compliance. The court also examined whether the non-disclosure was material enough to warrant setting aside the discharge order. After a thorough review of the evidence and applicable legal principles, the court determined that the bankrupt had not fully disclosed their assets and income. However, the court found that the non-disclosure did not significantly impact the administration of the bankrupt's estate or the interests of creditors, thus concluding that the grounds for setting aside the discharge order were not sufficiently compelling. Consequently, the court dismissed the Official Trustee's application and affirmed the discharge of the bankrupt's debts.
Orders
Orders of the court
1. The proceeding be dismissed.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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