Official Trustee in Bankruptcy v Billedo, in the matter of Junboy Billedo (Bankrupt)
[2003] FCA 322
•8 APRIL 2003
FEDERAL COURT OF AUSTRALIA
Official Trustee in Bankruptcy v Billedo, in the matter of Junboy Billedo (Bankrupt) [2003] FCA 322
IN THE MATTER OF JUNBOY BILLEDO
OFFICIAL TRUSTEE IN BANKRUPTCY v JUNBOY BILLEDO & ORS
N 7093 of 2003ALLSOP J
8 APRIL 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7093 of 2003
BETWEEN:
OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANTAND:
JUNBOY BILLEDO (Rodolfo Billedo Jnr)
FIRST RESPONDENTRODOLFO MOYER BILLEDO (Rudy Billedo)
SECOND RESPONDENTPERLITA GACAD BILLEDO
THIRD RESPONDENTRUFINO BILLEDO
FOURTH RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
8 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
On the conditions set out in paragraphs 4 and 5 below:
1.Pursuant to section 146 of the Bankruptcy Act 1966 (Cth), the distribution of dividends amongst the creditors of the bankrupt estate of Rodolfo Moyer Billedo, who and which have proved their debts, proceed in accordance with Division 5 of Part VI of the Bankruptcy Act 1966 (Cth), as if the bankrupt Rodolfo Moyer Billedo had filed a statement of his affairs, and those creditors had been stated to be creditors in it, and that the trustee, the Official Trustee in Bankruptcy, so act.
2.Pursuant to section 146 of the Bankruptcy Act 1966 (Cth), the distribution of dividends amongst the creditors of the bankrupt estate of Perlita Gacad Billedo, who and which have proved their debts, proceed in accordance with Divison 5 of Part VI of the Bankruptcy Act 1966 (Cth), as if the bankrupt Perlita Gacad Billedo had filed a statement of her affairs and those creditors had been stated to be creditors in it, and that the trustee, the Official Trustee in Bankruptcy, so act.
3.The costs of the applicant of and incidental to this application be paid out of the separate bankrupt estates of Rodolfo Moyer Billedo and Perlita Gacad Billedo.
4.In relation to the estate of Rodolfo Moyer Billedo, before any distribution of surplus funds from that estate into the joint estate of Junboy Billedo, Perlita Gacad Billedo, Rodolfo Moyer Billedo, Rufino Billedo, Rodolfo Billedo (Jnr) and Rudy Billedo pursuant to section 110(2) of the Bankruptcy Act 1966 (Cth), the applicant is to dispatch notice in writing by prepaid ordinary post to the Deputy Commissioner of Taxation, GE Capital and Nyman Gibson & Co solicitors notifying each that orders have been made by the Federal Court of Australia for distribution of a dividend in the estate of Rodolfo Moyer Billedo and requiring lodgement of proofs of debt in the estate of Rodolfo Moyer Billedo within 35 days after the date of the applicant’s letter, and after which time the applicant may proceed with distribution of the dividends in the estate of Rodolfo Moyer Billedo.
5.In relation to the estate of Perlita Gacad Billedo, no distribution of dividends shall be made for a period of 40 days from dispatching by prepaid ordinary post a letter from the applicant to the Commonwealth Bank of Australia, Deputy Commissioner of Taxation and Optus notifying each that orders have been made by the Federal Court of Australia for distribution of a dividend in the estate of Perlita Gacad Billedo within 35 days after the date of the applicant’s letter, and after which time the applicant may proceed with the distribution of the dividends in the estate of Perlita Gacad Billedo.
6.The costs of the applicant of and incidental to this Application be paid out of the estate of the Bankrupt.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7093 of 2003
BETWEEN:
OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANTAND:
JUNBOY BILLEDO (Rodolfo Billedo Jnr)
FIRST RESPONDENTRODOLFO MOYER BILLEDO (Rudy Billedo)
SECOND RESPONDENTPERLITA GACAD BILLEDO
THIRD RESPONDENTRUFINO BILLEDO
FOURTH RESPONDENT
JUDGE:
ALLSOP J
DATE:
8 APRIL 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application under s 146 of the Bankruptcy Act 1966 (Cth) (the Act) made ex parte by the Official Trustee in Bankruptcy, who is the trustee in various bankrupt estates, they being as follows:
1.the joint bankrupt estate of Junboy Billedo, Perlita Gacad Billedo, Rodolfo Moyer Billedo, Rufino Billedo, Rodolfo Billedo (Jnr), Rudy Billedo;
2.the separate bankrupt estate of Junboy Billedo
3.the separate bankrupt estate of Perlita Gacad Billedo
4.the separate bankrupt estate of Rodolfo Moyer Billedo
5.the separate bankrupt estate of Rufino Billedo
6.the separate bankrupt estate of Rodolfo Billedo (Jnr)
7.the separate bankrupt estate of Rudy Billedo
Rodolfo Billedo (Jnr) and Junboy Billedo are one and the same person and Rodolfo Moyer Billedo and Rudy Billedo are also one and the same person. These two are the sons of Perlita Gacad Billedo and Rufino Billedo. The two sons have filed statements of affairs, and the application is not made in respect of their bankrupt estates. Perlita Gacad Billedo and Rufino Billedo who are Mrs and Mr Billedo, the mother and father of the two boys, have not filed statements of affairs.
The evidence satisfies me that they have left Australia and their whereabouts are unknown. The affidavit of Mr Newton deposes to searches made and advertisements made to ascertain the creditors of the joint bankrupt estate referred to above as well as the separate bankrupt estates of Mr and Mrs Billedo. I am satisfied that all reasonable attempts have been made to ascertain the creditors of those three estates.
The only asset in the estates, being the joint estate, the separate estate of Mr Billedo and the separate estate of Mrs Billedo, was a property at Guildford in New South Wales, held by Mr and Mrs Billedo. This asset fell into the separate estates of each of Mr and Mrs Billedo in the sum of almost $66,000 in each estate. That is almost $132,000 in total, after the mortgagee was paid off. Effectively there are no other assets in the estates, being the joint estate and the estates of Mr and Mrs Billedo.
The affidavit of Mr Newton identifies creditors of the joint estate and creditors of the bankrupt estate of each of Mr and Mrs Billedo. The creditors of the joint estate total $21,225, in which estate there are no assets. The estate of Mr Billedo has creditors of $1,205, in respect of proofs which have been lodged. The estate of Mrs Billedo has $88,146 in respect of admitted proofs.
The creditors of the joint estate and the two individual estates are listed in paragraphs [24], [25] and [26] of the affidavit of Mr Newton and are in the amounts identified at [5] above. Those amounts are for the admitted debts. There are a number of parties nominated as creditors in these paragraphs for various sums of money, none large, where no proof of debt has been lodged. In particular there are two entries for the Deputy Commissioner of Taxation for $1 which is a nominal sum attributed to the Commissioner. The Commissioner has been contacted in writing and apparently has no claim against any of the estates.
GE Capital is identified in a credit search as a possible creditor for $301. There has been no proof of debt lodged and no response to any advertisements. Solicitors, Nyman Gibson and Co stand in the amount of $1,862 which I take to be a sum which has been ascertained in some fashion by the trustee. No proof of debt has been lodged. Apparently records in the Guildford house when it was taken possession of, indicate that there may be debts to the Commonwealth Bank of Australia in the amount of $60 and Optus Communications in the amount of $223.25. No proof of debt has been lodged in relation to those debts.
I am satisfied in relation to the bankrupt estates of Mr and Mrs Billedo, that the trustee has taken all reasonable steps to obtain a statement of affairs from those bankrupts. I am also satisfied that they are now out of the country. I am satisfied that reasonable attempts have been made to ascertain the creditors of the relevant estates and that reasonable attempts have been made to get assets of the estates. I am satisfied, subject to what I am about to say, about certain creditors, that the bankruptcy administration is all but complete.
What is proposed is that the assets in Mr Billedo's estate be used to pay in full the $1,205 to the National Australia Bank. The balance of those funds would then be used, after the trustee's expenses, under section 110(2) of the Act to go towards the payment of the creditors of the joint estate. The creditors of Mrs Billedo's estate outweigh the assets in her estate. There are, as I have said, certain creditors for nominal sums who have not yet lodged proofs of debts, if indeed they are creditors at all at the present time.
What I propose to do is to make an order in relation to the estates of Mr and Mrs Billedo in terms of pars 1 and 2 of the application and order 3 as claimed in the application, subject to the following conditions.
In relation to Mr Billedo's estate, before any deployment of any surplus funds in that estate into the joint estate, the trustee is to write to each of the creditors identified in par [25] of the affidavit of Mr Newton, indicating that this Court has made Orders for the distribution of funds and requiring within 35 days the lodgement of any proof of debt in the estate of Mr Billedo, after the passage of which time the surplus funds may then be employed pursuant to s 110 as anticipated.
The condition in relation to Mrs Billedo's estate is that no distribution be made for a period of 40 days from dispatch by prepaid post to the three creditors of a letter informing them of the imminent distribution of the estate and requiring any proof of debt to be lodged within 35 days.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J. Associate:
Dated: 5 May 2003
Counsel for the Applicant: Mr A McNally Solicitor for the Applicant: Lobban McNally & Harney No appearance for the Respondents Date of Hearing: 8 April 2003 Date of Judgment: 8 April 2003
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