FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QUINLIVAN v PRENTICE & ANOR | [2004] FMCA 1 |
| BANKRUPTCY – Income contributions – surplus contributions paid by bankrupt to the trustee – payments made in advance of income contribution assessments – whether the trustee is entitled to retain the surplus contributions – the trustee is entitled to retain surplus contributions until the process of making income contribution assessments is complete – thereafter the funds could only be retained if the funds could be treated as a voluntary contribution – the funds were not a voluntary contribution – they were paid under a mistake and should now be disbursed as the bankrupt intended. |
Bankruptcy Act 1966 (Cth), ss.82, 134, 139K, 139P, 139W, 139WA, 139ZH, 178
Legal Profession Act 1987 (NSW), s.38FC
Challen v Benedeich [1999] FCA 845
Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149CLR 337
David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353
Ex parte James; In re Condon (1874) LR 9 Ch App 609
Hepworth v Hepworth (1963) 110 CLR 309
Hypec Electronics Pty Ltd (in liq) v Mead & Ors [2003] NSWSC 934
Lloyd v Federal Commissioner of Land Tax (1933) 49 CLR 160
Macchia v Nilant [2001] FCA 7
Muschinski v Dodds (1984) 160 CLR 583
Re Gillies; ex parte the Official Trustee in Bankruptcy v Gillies (1993) 42 FCR 571
Re Lofthouse (2001) 107 FCR 151
Re Tyndall; ex parte Official Receiver (1977) 17 ALR 182
In the matter of the bankrupt estate of Sharpe (1998) 80 FCR 536
| Applicant: | ANTHONY PHILIP QUINLIVAN |
| First Respondent: Second Respondent: | MAXWELL WILLIAM PRENTICE COMMISSIONER OF TAXATION |
| File No: | SZ1753 of 2003 |
| Delivered on: | 17 February 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 9 & 23 December 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M F Holmes, QC |
| Solicitors for the Applicant: | Horton Rhodes |
| Counsel for the Respondent: | Mr D Pritchard |
| Solicitors for the Respondent: | Henry Davis York |
ORDERS
Within 60 days the trustee shall complete any outstanding compulsory income contribution assessments pursuant to s.139W of the Bankruptcy Act 1966 (Cth).
At the end of that period the trustee shall pay any surplus income contributions to the Commissioner of Taxation, on account of taxation liabilities incurred by the bankrupt since the commencement of the bankruptcy.
The costs of these proceedings are reserved.
Pending further order of the Court as to costs, the trustee may retain sufficient funds in the estate to meet his costs incurred in these proceedings as expenses incurred in the course of the administration of the estate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1753 of 2003
| ANTHONY PHILIP QUINLIVAN |
Applicant
And
| MAXWELL WILLIAM PRENTICE |
First Respondent
COMMISSIONER OF TAXATION
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is an undischarged bankrupt who formerly practised as a barrister. The respondent is the trustee of his bankrupt estate. By application filed on 10 October 2003 the applicant seeks declarations that money held by the trustee in the sum of…
Continue reading Quinlivan v Prentice
Sign in free to access the full text
- AGLC
- Quinlivan v Prentice [2004] FMCA 1
- Case
- [2004] FMCA 1
- Decision Date
CaseChat Overview and Summary
The Court was required to interpret and apply relevant provisions of the Bankruptcy Act, specifically section 139W, which deals with the assessment and payment of compulsory income contributions by bankrupts. The dispute centred around the timing and method of calculating and paying these contributions, and how any surplus from these payments should be handled. The Court needed to determine whether the trustee had correctly assessed the contributions and, if so, how any surplus should be dealt with in accordance with the statutory framework.
The Court found that the trustee had properly assessed the compulsory income contributions owed by the bankrupt and had paid the required amount. However, there was a surplus remaining after these contributions had been made. The Court held that this surplus should be paid to the Commissioner of Taxation to account for any taxation liabilities incurred by the bankrupt since the commencement of the bankruptcy. The Court emphasised the importance of adhering to statutory obligations and ensuring that surplus contributions are appropriately allocated to discharge any outstanding liabilities of the bankrupt.
The Court issued specific orders to guide the trustee in the administration of the estate. Firstly, the trustee was directed to complete any outstanding compulsory income contribution assessments within 60 days. Secondly, any surplus income contributions were to be paid to the Commissioner of Taxation to settle the bankrupt's taxation liabilities. The costs of these proceedings were reserved, and the trustee was permitted to retain sufficient funds from the estate to cover his costs incurred in these proceedings.
Orders
Orders of the court
1.
Within 60 days the trustee shall complete any outstanding compulsory income contribution assessments pursuant to s.139W of the Bankruptcy Act 1966 (Cth).
2.
At the end of that period the trustee shall pay any surplus income contributions to the Commissioner of Taxation, on account of taxation liabilities incurred by the bankrupt since the commencement of the bankruptcy.
3.
The costs of these proceedings are reserved.
4.
Pending further order of the Court as to costs, the trustee may retain sufficient funds in the estate to meet his costs incurred in these proceedings as expenses incurred in the course of the administration of the estate.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.