Pascoe as trustee Of the Bankrupt Estate Of Greentree

[2011] FMCA 547

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF GREENTREE [2011] FMCA 547

BANKRUPTCY – Application by Trustee in Bankruptcy for an order that distribution of dividends amongst creditors of a bankrupt estate proceed.

Bankruptcy Act 1966 (Cth), s.146

Re Rees; Stubberfield v Stubberfield [1999] FCA 1862

Applicant: SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF DALE ALLAN GREENTREE

File Number: SYG 1194 of 2011

Judgment of: Barnes FM

Hearing date: 28 June 2011

Delivered at: Sydney

Delivered on: 28 June 2011

REPRESENTATION

Solicitors for the Applicant: Turks Legal

ORDERS

1. Pursuant to Section 146 of the Bankruptcy Act 1966 the distribution of dividends amongst creditors of the Bankrupt Estate of Dale Allan Greentree, who have proved their debts, proceed in accordance with Division 5 of Part VI of the Bankruptcy Act as if the Bankrupt, Dale Allan Greentree, had filed a Statement of his Affairs, and those creditors had been stated to be creditors in it.

2. The costs of the applicant of, and incidental to, this application be paid out of the Estate of the Bankrupt.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1194 of 2011

SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF DALE ALLAN GREENTREE

Applicant

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application filed on 10 June 2011 seeking orders on an ex parte basis pursuant to s.146 of the Bankruptcy Act 1966 (Cth) that the distribution of dividends amongst creditors of the bankrupt estate of Dale Allan Greentree who have proved their debts proceed in accordance with Division 5 of Part VI of the Bankruptcy Act as if the bankrupt had filed a statement of affairs and those creditors had been stated to be creditors in it.

2. The application is brought by Mr Pascoe as trustee of the bankrupt estate of Mr Greentree.  I am satisfied on the evidence before the court that the bankrupt, Mr Greentree, has been served with a copy of the application and supporting affidavits in these proceedings.  Hence he is on notice of these proceedings and thus would have had the opportunity to appear before the court in relation to these proceedings had he wished to do so.  He was not present when the matter was before the registrar this morning and nor was he present when the matter was called in this court.  In these circumstances I am satisfied that I should deal with the application in his absence. 

3. The application is brought on the basis that a sequestration order was made against the estate of Mr Greentree on 1 July 2010.  Mr Pascoe was appointed trustee of the bankrupt’s estate.  No statement of affairs was filed by the bankrupt.  I am satisfied on the basis of Mr Pascoe’s affidavit that he notified the bankrupt on two occasions in July 2010 (by letter sent by registered post to his last known address) of the obligation to file a statement of affairs.  There is before the court a copy of a signed delivery confirmation advice receipt in relation to one of those letters in the name of the bankrupt.  I am satisfied that no statement of affairs has been filed.

4. I note also the evidence of Mr Mamun that there were two unsuccessful attempts to contact Mr Greentree (in August and September 2010) by telephoning the only contact number provided for him by the petitioning creditor.  I am satisfied on the evidence before the court that there has not been any response by the bankrupt to the trustee’s correspondence. 

5. There is also evidence before the court that the bankruptcy administration is all but complete, except for distribution of a dividend to creditors who have proved their debts.  Included in the evidence before me is a copy of a report to creditors which indicates that the trustee was made aware of two creditors of Mr Greentree, the petitioning creditor and another company.  Mail sent to that other company was returned to sender.  The trustee is now aware of only one creditor who has submitted a proof of debt in the estate for $10,858.03.  As at 7 June 2011 the trustee held an amount of $22,981.66 in the bankrupt’s estate. 

6. In these circumstances the trustee wishes to proceed to make a distribution to the creditor who has filed a proof of debt in accordance with the Bankruptcy Act, as if the bankrupt had filed a statement of affairs. 

7. There is no express statement in Mr Pascoe’s affidavit to the effect that the delay is causing prejudice to the creditors (see Re Rees; Stubberfield v Stubberfield [1999] FCA 1862) but it is abundantly clear that this can be inferred from the evidence. The sequestration order was made on 1 July 2010. The bankrupt has not completed a statement of affairs or otherwise contacted or co-operated with any attempts by the trustee to administer his estate. There is one creditor who has filed a proof of debt.

8. In all the circumstances the orders sought should be made.  There is nothing to the contrary before the court.  This is a step that is necessary to be taken for the trustee to proceed to complete the administration of the estate. 

9. It is also appropriate that the costs of the application be paid out of the estate of the bankrupt. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  18 July 2011