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:
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.
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.
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.
A further affidavit of the Trustee, dated 1 May 2019, was filed. Both parties filed further submissions.
At the…
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- Case
- [2019] FCA 1212
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the terms of the agreement were clear and binding, and if the trustee had indeed breached those terms. The primary issue was whether the trustee's actions constituted a breach of the agreement, which would entitle Pekar to the return of the funds. The court also needed to assess the enforceability of the agreement and the extent of the trustee's obligations under it.
The court considered the terms of the agreement and the actions of the trustee, finding that there was a breach of the agreement. However, the court held that the breach did not warrant the return of the funds to Pekar. The court found that the trustee's actions, while in breach of the agreement, did not prejudice Pekar's rights under the Bankruptcy Act 1966. Consequently, the court ruled that Pekar was not entitled to the return of the funds. The matter was listed for mention to determine further steps.
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
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Ratio Decidendi
Legal Principle Established
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