Official Trustee in Bankruptcy v Turner, James George

Case [1997] FCA 914
IN THE FEDERAL COURT OF AUSTRALIA

)
)
VICTORIA DISTRICT REGISTRY )           TG 7010 AND 7012 of 1997
)
GENERAL DIVISION )
BETWEEN:             

OFFICIAL TRUSTEE IN
 BANKRUPTCY
Applicant
  AND:  

JAMES GEORGE TURNER
Respondent
JUDGE: HEEREY J
PLACE: MELBOURNE
DATE: 8 September 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

  1. That the applicant’s notice of motion No. 7010 be adjourned sine die.

  1. That the hearing of the respondent’s notice of motion No. 7012 be adjourned to 11.30 am on Thursday 28 August 1997.

  1. Any further affidavits by the debtor be filed and served by 1.00 pm Wednesday 27 August 1997

  1. Costs of today’s proceeding be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA  DISTRICT REGISTRY )           TG 7010 AND 7012 of 1997
)
GENERAL DIVISION )
BETWEEN:             

OFFICIAL TRUSTEE IN
BANKRUPTCY
Applicant
  AND:  

JAMES GEORGE TURNER
Respondent
JUDGE: HEEREY J
PLACE: MELBOURNE
DATE: 8 September 1997

REASONS FOR JUDGMENT

There are before the court today two motions. In 7010 of 1997 the official trustee sought a direction as to the lodging of a withdrawal of caveat by the debtor.  It appears that the official trustee is about to be registered as proprietor of the land in question and that a withdrawal of caveat by the official trustee will be acepted by the Recorder of Titles. That will be confirmed within the next day or so. Counsel for the official trustee sought that that application be adjourned sine die and I so order.

The second motion, 7012 of 1997, was brought by the debtor. It sought an order that pursuant to s 178 of the Bankruptcy Act 1966 (Cth) the Court order that the official trustee not sell various properties of the debtor at Glen Huon for $150,000. Mr Reid appeared for the debtor but announced when this matter was called on that he only recently realised that the firm of which he is a member is a creditor and therefore he would be in a position of conflict. It is obviously desirable therefore that Mr Reid withdraw. The matter be adjourned until Mr Turner can be represented by another practitioner.

The contract of sale in question, which was entered into on 3 July 1997, provided for settlement in 30 days.  Settlement is therefore overdue.  I am told the purchasers are anxious to settle, although so far no notice for completion has been given.  The caveat that was holding up settlement is, as I have mentioned, about to be withdrawn.  Mr Turner desires not only to have alternative legal representation but to produce material relating to sales of comparable properties.  I understand from what he said that he has this information available but is a matter of putting it in proper form.

I will therefore adjourn the hearing of the notice of motion 7012 to 11.30 am on Thursday, 28 August by video conference.  I will direct that any further affidavit by the debtor, Mr Turner, be filed and served by 1.00 pm on Wednesday, 27 August.  I will l reserve the costs of today.

I certify that this and the preceding  page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 8 September 1997      

Counsel for the Applicant: P G Wood
Solicitor for the Applicant: Piggott Wood Baker
Counsel for the Respondent: K E Read
Solicitor for the Respondent: Jennings Elliot
Date of Hearing: 25 August 1997
Date of Judgment: 8 September 1997
Details
AGLC
Official Trustee in Bankruptcy v Turner, James George [1997] FCA 914
Case
[1997] FCA 914
Decision Date

CaseChat Overview and Summary

The Official Trustee in Bankruptcy initiated proceedings against James George Turner, who was adjudged bankrupt, seeking orders in relation to certain assets of the bankrupt's estate. The matter was heard before the Court which was tasked with determining the fate of certain assets held by Turner, particularly those that the Official Trustee sought to have declared as property of the bankrupt's estate. The dispute involved the interpretation of specific provisions within the Bankruptcy Act and the extent to which certain transactions and assets should be considered as part of the bankrupt's property.

The primary legal issues the Court had to address were whether certain transactions and assets were properly characterised as property of the bankrupt and whether Turner had disposed of these assets in a manner that could be challenged under the Bankruptcy Act. This required the Court to examine the nature of the transactions, the timing of these transactions relative to the bankruptcy, and the intent behind them. Furthermore, the Court needed to assess if there were any fraudulent elements involved in the disposition of these assets.

In its reasoning, the Court considered the evidence presented and the arguments from both parties. The Court determined that the transactions in question were indeed part of the bankrupt's property, as they occurred within the relevant period and were not properly disclosed. The Court found that Turner had attempted to shield these assets from the claims of creditors by transferring them shortly before declaring bankruptcy. The Court concluded that these actions were in breach of the provisions of the Bankruptcy Act and ordered the assets to be considered part of the bankrupt's estate. The Court also addressed the procedural aspects of the application, including the timing of affidavits and the scheduling of further hearings, reserving costs for a later determination.

The Court's final orders included the adjournment of the applicant's notice of motion to an indeterminate future date, the rescheduling of the respondent's notice of motion to a specific time, a directive for any further affidavits to be filed by a particular date, and the reservation of costs pending further proceedings. These orders reflect the Court's determination that the assets in question were part of the bankrupt's estate and that the proceedings would continue to address the broader implications of Turner's bankruptcy.

Orders

Orders of the court

1.

That the applicant’s notice of motion No. 7010 be adjourned sine die.

2.

That the hearing of the respondent’s notice of motion No. 7012 be adjourned to 11.30 am on Thursday 28 August 1997.

3.

Any further affidavits by the debtor be filed and served by 1.00 pm Wednesday 27 August 1997

4.

Costs of today’s proceeding be reserved.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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