Pattison v Cook

[2006] FMCA 1713

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATTISON v COOK [2006] FMCA 1713

BANKRUPTCY – Discharge of debts of bankrupt – assertion by bankrupt of action against Trustee – failure of bankrupt to release Trustee – orders made to compel institution of action by bankrupt, failing which orders for stay of any such action.

Bankruptcy Act 1996, s.153A(2)

Bellin v Pattison (Trustee) [1999] FCA 51

Applicant: PAUL ANTHONY PATTISON (TRUSTEE)

Respondent: JULIE FAY COOK

File number: MLG 1349 of 2006

Judgment of: Burchardt FM

Hearing date: 13 November 2006

Date of last submission: 13 November 2006

Delivered at: Melbourne

Delivered on: 13 November 2006

REPRESENTATION

Counsel for the Applicant: Ms Gobbo

Solicitors for the Applicant: Harwood Andrews

The Respondent: No Appearance

ORDERS

1. Any proceedings to be issued by the bankrupt against the Trustee, his servants or agents in relation to the administration of the bankrupt estate or any other matter arising from the administration of the bankrupt estate be issued by 6 December 2006. 

2. In the event that the bankrupt does not bring the proceedings referred to in Order 1 by the said date:

   (a)the bankrupt’s debts (as defined by section 153A(6) of the Bankruptcy Act 1966 (“the Act”) be paid by the Trustee; 

   (b)the bankrupt be stayed from issuing proceedings against the Trustee, his servants or agents in relation to the administration of the bankrupt estate or matters arising from the administration of the bankrupt estate (without leave of the Court); 

   (c)surplus funds be distributed to the bankrupt; and 

   (d)a certificate be issued in accordance with section 153A(2) of the Act.

3. Costs. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1349 of 2006

PAUL ANTHONY PATTISON (TRUSTEE)

Applicant

And

JULIE FAY COOK

Respondent

REASONS FOR JUDGMENT

1. In this matter the Applicant, as Trustee of the estate of the Respondent, has by application filed on 25 October 2006 sought final orders. 

   
   

   The final orders that have been sought can be summarised as saying that it is required that the bankrupt Respondent issue any proceedings against the Trustee or his servants and agents in relation to the administration of the bankrupt's estate or any other matter arising from the administration of the estate by 6 December 2006 and that failing any such application, the bankrupt's debts be paid by the Trustee and the bankrupt be stayed from issuing any proceedings against the Trustee of the sort earlier indicated.  This would also have the effect of distributing surplus funds to the bankrupt.  

2. In an affidavit filed in support of that application, the affidavit being sworn on 24 October 2006 and filed on 25 October 2006, the Applicant deposes that, inter alia, there are funds available to be distributed to the bankrupt as all creditors have been paid in full, that he is desirous of finalising the administration of the estate and that the bankrupt has made an unspecified assertion to him that she intends to issue legal proceedings against him in relation to his administration of the estate.  The bankrupt has not in any way specified the nature of the claim upon which any such legal proceedings would be based.

3. Accordingly the Applicant deposes that he is not willing to issue a certificate of annulment under s.153A(2) of the Bankruptcy Act 1996.  He refers in his affidavit to the decision of Kenny J in Bellin v Pattison (Trustee) [1999] FCA 51 in this regard. The Applicant further deposes that he has, on 11 July 2006 and again on 9 August 2006, sought to obtain from the bankrupt a release to enable him to proceed in the matter he has indicated but that the Applicant has not, as it were, taken up those offers. As at 24 October 2006, in any event she had not returned the executed deed, nor indicated to the Applicant that she intended to execute the deed in the near future.

4. From an affidavit affirmed by Cale Thirstin on 10 November 2006 it is clear that the Applicant has been served with the relevant supporting documentation in this proceeding.  It would appear that the Applicant purported to refuse service.  The documents were, however, left at her feet and I am satisfied that service, within the meaning of the relevant rules, has been affected. 

5. I accept the submissions of counsel for the Applicant that the authority of Bellin v Pattison is to all effects and purposes directly on point.  It is clear that the Applicant ought to receive the relief that he seeks and for those reasons I will make orders in the terms set out in the initiating application. 

I certify that the preceding Five (5) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate:  Brooke Evans

Date:  13 November 2006