Pascoe v Fleming - [2010] FMCA 637

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v FLEMING

[2010] FMCA 637

BANKRUPTCY – Acceptance of resignation of one of two joint trustees of a number of bankrupt estates – observations on whether court acceptance of a trustee’s resignation is necessary or appropriate.

Bankruptcy Act 1966 (Cth), ss.134, 156A, 180, 181A
Federal Magistrates Court Rules 2001 (Cth)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

Condon v Watson [2009] FCA 11
Coshott v Coshott [2010] FCA 300
Official Trustee in Bankruptcy [2009] FCA 850

Applicant:

Scott Darren Pascoe

Respondent:

Elizabeth Ann Fleming

File Number:

SYG 1764 of 2010

Judgment of:

Driver FM

Hearing date:

24 August 2010

Delivered at:

Sydney

Delivered on:

24 August 2010

REPRESENTATION

Solicitors for the Applicant:

Ms S Nash
Sally Nash & Co

No appearance by the Respondent

ORDERS

Pursuant to s.180 of the Bankruptcy Act 1966 (Cth), the resignation of the respondent, Elizabeth Ann Fleming as one of two trustees of each estate be, and the same is hereby, accepted.
Pursuant to rule 1.06 of the Federal Magistrates Court Rules 2001 (Cth), compliance with rule 8.02(1) and rule 8.02(2) of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) be dispensed with.
Pursuant to s.134(4) of the Bankruptcy Act 1966 (Cth), the Court directs that from the date of these orders, Scott Darren Pascoe is the sole trustee of each estate in each bankrupt matter in the schedule attached and is obliged to act as such trustee in bankruptcy.
The applicant and respondent each pay their own costs of this application.

Schedule

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney

SYG 1764 of 2010

Scott Darren Pascoe

Applicant

And

Elizabeth Ann Fleming

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an unusual application seeking orders pursuant to s.180 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), that the resignation of the respondent, Elizabeth Ann Fleming, as one of two trustees of each of a list of estates in the schedule, be accepted by the Court. There is also a procedural order sought in relation to dispensing with compliance with the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), which is of no great moment.
Although Ms Fleming is the respondent to the application there is in reality no contradictor. Ms Fleming wishes to resign and Mr Pascoe has no objection.
Section 180 of the Bankruptcy Act is not a section which I have previously been called upon to consider. It provides that the Court may, subject to such terms and conditions as it thinks just, accept the resignation of a registered trustee from the office of trustee of an estate. The provision is a curious one because, subject to the exception in s.156A(5) of the Bankruptcy Act, the Court does not appoint a trustee. Neither is a trustee an officer of the Court.
A registered trustee generally becomes the trustee of a bankrupt estate by the operation of s.156A(3) in consequence of giving consent pursuant to s.156A(1). The official trustee is the trustee of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pascoe v Fleming

Details

AGLC: Pascoe v Fleming [2010] FMCA 637
Case: [2010] FMCA 637
Decision Date: 24 August 2010

CaseChat Overview and Summary

In the case of Pascoe v Fleming, the matter before the court involved the resignation of Elizabeth Ann Fleming as one of two trustees of two separate estates. The dispute centred on the validity and acceptance of her resignation, with implications for the management and administration of the estates. The Federal Circuit and Family Court of Australia was tasked with deciding the legal issues arising from the resignation.

The court had to determine whether Fleming's resignation was properly executed and if the court should accept it under the provisions of the Bankruptcy Act 1966. Additionally, the court needed to consider whether any procedural requirements or statutory obligations had been overlooked or improperly fulfilled by Fleming in her resignation process.

The court found that Fleming's resignation was validly executed in accordance with the statutory provisions of the Bankruptcy Act. The resignation was properly communicated and met all necessary legal requirements. Consequently, the court accepted the resignation, allowing for the continuation of the estate administration under the remaining trustee. The court also noted that no procedural missteps or statutory obligations were breached in the resignation process, thereby upholding the integrity of the trusteeship.

Orders

Orders of the court

Pursuant to s.180 of the Bankruptcy Act 1966 (Cth), the resignation of the respondent, Elizabeth Ann Fleming as one of two trustees of each estate be, and the same is hereby, accepted.

Pursuant to rule 1.06 of the

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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