FEDERAL COURT OF AUSTRALIA
Pekar v Holden (Trustee) [2019] FCA 442
File number: VID 991 of 2018 Judge: MOSHINSKY J Date of judgment: 3 April 2019 Catchwords: BANKRUPTCY – application by former bankrupt for release of funds paid to trustee in bankruptcy pursuant to an agreement – where former bankrupt contended that his estate was free from debt and, accordingly, the funds should be released Legislation: Bankruptcy Act 1966 (Cth), ss 82, 102, 109, 120, 121, 140, 145,153 Cases cited: Boensch v Pascoe [2007] FCA 1977
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Holden in his Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22
Jambrecina v Official Trustee in Bankruptcy [2005] FCA 236
Pekar v Holden (Trustee) [2017] FCA 596
Pekar v Rickards Legal [2015] FCCA 2888
Pekar v Rickards Legal [2015] FCCA 217
Date of hearing: 15 October and 7 November 2018 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 72 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms T Rothwell of Rothwell Lawyers ORDERS
VID 991 of 2018 BETWEEN: FIMA PEKAR
Applicant
AND: TIMOTHY MARK SHUTTLEWORTH HOLDEN
Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
3 APRIL 2019
THE COURT ORDERS THAT:
1.The matter be listed for mention on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
This matter relates to an agreement (the Agreement) made on 27 June 2017 between the applicant, Mr Pekar, and the respondent, the trustee of Mr Pekar’s bankrupt estate (the Trustee).
Mr Pekar and his wife, Mrs Pekar, had been the joint proprietors of a residential property in East St Kilda (the Property). On 16 July 2012, Mr Pekar transferred his interest in the Property to Mrs Pekar.
On 2 October 2014, a Registrar of the Federal Circuit Court of Australia made a sequestration order against the estate of Mr Pekar. The Trustee was appointed as one of two trustees of Mr Pekar’s estate. He was subsequently appointed as the sole trustee of Mr Pekar’s estate.
On 30 April 2015, the Trustee applied to the Federal Circuit Court seeking a declaration that the transfer was void, pursuant to s 120 or 121 of the Bankruptcy Act 1966 (Cth) (the Act), and consequential orders for possession and sale of the Property.
On 20 January 2017, Judge Burchardt made the orders sought by the Trustee: Holden in his Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22.
Mrs Pekar appealed the orders of the Federal Circuit Court. On 30 May 2017, Tracey J made orders dismissing the applicant’s appeal: Pekar v Holden (Trustee) [2017] FCA 596.…
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- AGLC
- Pekar v Holden (Trustee) [2019] FCA 442
- Case
- [2019] FCA 442
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions and concluded that Section 153 operates to release the bankrupt from debts provable in insolvency, but it does not discharge the bankrupt's estate from those debts. As a result, any property vested in the trustee continues to be so vested even after the bankrupt is discharged, and it remains subject to creditors' provable and proved debts. This means that the funds in question were still available to satisfy the bankrupt's creditors. Given this interpretation of the statute, the court found that Mr Pekar's contentions were not valid, and he was not entitled to the release of the $200,000.
The court further noted that any ancillary or consequential orders sought by Mr Pekar were also not appropriate, as they depended on the invalid contentions he presented. Consequently, the court ordered that the matter be listed for a mention to address the issue of costs and any other matters that may arise. This decision underscores the principle that the discharge of a bankrupt does not affect the rights of creditors in relation to the bankrupt's estate.
Orders
Orders of the court
1. The matter be listed for mention on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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