Pekar v Holden (Trustee) (No 2)

FEDERAL COURT OF AUSTRALIA

Pekar v Holden (Trustee) (No 2) [2019] FCA 1212

File number:

VID 991 of 2018

Judge:

MOSHINSKY J

Date of judgment:

7 August 2019

Catchwords:

BANKRUPTCY – application by former bankrupt for release of funds paid to trustee in bankruptcy pursuant to an agreement – whether the former bankrupt was entitled to return of the funds on the basis that the trustee had breached the agreement

Legislation:

Bankruptcy Act 1966 (Cth), ss 102, 178, Sch 2, s 45-1

Cases cited:

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Macchia v Nilant (2001) 110 FCR 101

McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547

Re Tyndall (1977) 30 FLR 6

Date of hearing:

3 June 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

21

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:	7 AUGUST 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:

1. On 3 April 2019, I delivered reasons for judgment in respect of the contentions raised by Mr Pekar in this proceeding: Pekar v Holden (Trustee) [2019] FCA 442 (the April 2019 Reasons).  These reasons should be read together with the April 2019 Reasons.  I will adopt the abbreviations used in the April 2019 Reasons.

2. In the April 2019 Reasons, I left open one issue, which had not been fully explored at the hearing.  I indicated that I would list the matter for mention in relation to that issue.  The outstanding issue was whether Mr Pekar was entitled to return of the $200,000 on the basis that the Trustee had breached the Agreement by failing to admit, reject or require further evidence in support of the proofs of debt in accordance with the Bankruptcy Act 1966 (Cth) and/or within a reasonable time: see the April 2019 Reasons at [15] and [66]. I indicated that I would list the matter for mention to ascertain whether Mr Pekar sought the return of the money on this basis, and whether the parties wished to make any further submissions.

3. The matter was listed for mention on 10 April 2019.  Mr Pekar (who continued to appear for himself) indicated that he did seek the return of the $200,000 on this basis, and the solicitor for the Trustee indicated that the Trustee sought to file further evidence and submissions.  Orders were made for the filing of further evidence and submissions, and the matter was listed for further hearing.

4. A further affidavit of the Trustee, dated 1 May 2019, was filed.  Both parties filed further submissions.

5. At the…