FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OWNERS CORPORATION PS334337A v HOILES | [2012] FMCA 218 |
| BANKRUPTCY – Application of trustees under s.146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – no statement of affairs received in relation to deceased’s estate – application acceded to – costs charges and expenses incurred by applicants including in period between initial bankruptcy and subsequent bankruptcy of a deceased estate be paid in priority by bankrupt deceased estate. |
| Bankruptcy Act 1966 (Cth) ss.109(1), 146, 246 |
Re Universal Distributing Company Ltd (in liq) (1933) 48 CLR 171
| Applicant: | OWNERS CORPORATION PS334337A |
| Respondent: | GRAEME HOILES |
| File Number: | MLG 902 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing date: | 19 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brown |
| Solicitors for the Applicant: | Gadens Lawyers |
| The Respondent: | No appearance |
UPON APPLICATION MADE TO THE COURT by the trustees, Messrs Paul Andrew Burness and Andrew James Jess, Mr Brown of Counsel appearing for the applicants and there being no appearance by or on behalf of the respondent or any creditor
THE COURT ORDERS THAT:
The costs charges and expenses incurred by the applicants, including the remuneration and expenses of the applicants, between 25 November 2010 and 2 May 2011 in relation to the applicants’ appointment as joint and several trustees of the bankrupt estate of Graeme Hoiles be paid in priority by the bankrupt deceased estate of Graeme Hoiles pursuant to s.109(1) of the Bankruptcy Act 1966 (Cth) (‘the Act’).
The applicants proceed to distribute dividends amongst creditors who have proved their debts as if the bankrupt or the bankrupt’s legal representative had filed a statement of affairs and those creditors had been stated to be creditors in it, pursuant to s.146 of the Act.
The applicants’ costs of the application be paid in accordance with the Act with priority.
IT IS DIRECTED THAT:
The Proposed Form of Order dated 8 March 2012 and marked ‘Exhibit A’ be placed upon the Court file.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 902 of 2010
| OWNERS CORPORATION PS334337A |
Applicant
And
| GRAEME HOILES |
Respondent
REASONS FOR JUDGMENT
The application before the Court this day is one made by Mr Burness and Mr Jess in their capacity as joint and several trustees of the bankrupt estate of Graeme Hoiles, deceased. The application is necessitated primarily because of the need to prove the estate in the absence of a receipt by the trustees of any statement as to affairs in relation to the Hoiles estate. The application is supported by an affidavit of Paul Andrew Burness, sworn 10 February 2012, together with exhibits marked “PAB1” to “PAB14”, and a further affidavit of Paul Andrew Burness sworn 15 March 2012. The earlier affidavit of Mr Burness, together with the sealed application returnable at this Court in the first instance on 8 March 2012, was served on the various creditors as set out in the affidavit of service of Jeremy Forder, an office service clerk employed by…
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- Case
- [2012] FMCA 218
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the applicants' costs and expenses were properly incurred and whether they were eligible for priority payment under section 109(1) of the Bankruptcy Act 1966. The court also needed to determine whether the applicants could proceed with the distribution of dividends to creditors as if a statement of affairs had been filed, in accordance with section 146 of the Act.
The court found that the applicants had incurred reasonable and necessary costs and expenses in their capacity as trustees. These expenses included remuneration and expenses for the period between 25 November 2010 and 2 May 2011. The court held that these costs were properly incurred and should be paid in priority over other claims pursuant to section 109(1) of the Act. The court also determined that the applicants could proceed with the distribution of dividends to creditors as if a statement of affairs had been filed, as permitted under section 146 of the Act.
Accordingly, the court ordered that the costs and expenses incurred by the applicants be paid in priority by the deceased bankrupt's estate, and that the applicants could proceed with the distribution of dividends to creditors. The court further ordered that the applicants' costs of the application be paid in accordance with the Act with priority. The proposed form of order was to be placed on the court file.
Orders
Orders of the court
1.
The costs charges and expenses incurred by the applicants, including the remuneration and expenses of the applicants, between 25 November 2010 and 2 May 2011 in relation to the applicants’ appointment as joint and several trustees of the bankrupt estate of Graeme Hoiles be paid in priority by the bankrupt deceased estate of Graeme Hoiles pursuant to s.109(1) of the Bankruptcy Act 1966 (Cth) (‘the Act’).
2.
The applicants proceed to distribute dividends amongst creditors who have proved their debts as if the bankrupt or the bankrupt’s legal representative had filed a statement of affairs and those creditors had been stated to be creditors in it, pursuant to s.146 of the Act.
3.
The applicants’ costs of the application be paid in accordance with the Act with priority.
IT IS DIRECTED THAT:
4.
The Proposed Form of Order dated 8 March 2012 and marked ‘Exhibit A’ be placed upon the Court file.
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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