Official Trustee in Bankruptcy

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 8.02

Re Brian, Muir v Bradley (1984) 3 FCR 91; ref to
Griffin v Triscott (2004) 183 FLR 1; ref to

OFFICIAL 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) Applicant
JUDGE:	EMMETT J
DATE:	7 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. 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.

2. 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.

3. 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.

4. 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…