Re Cameron, J.S.G. v Ex parte Cameron

[1991] FCA 146

Re: JAMES STEWART GRAEME CAMERON
Ex parte: CAMERON
No. NP894 of 1991
FED No. 146

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Hill J.(1)

HEARING

SYDNEY

#DATE 4:4:1991

Counsel and Solicitors : W. Haffenden instructed by
for Applicant: Allen Allen and Hemsley

JUDGE1

The applicant, Rosanna Mary Cameron, petitions the court for an order for the administration in bankruptcy of the estate of her late husband, who died on 3 August 1990.

1. The evidence shows that as at the date of his death he was personally present and ordinarily resident in Australia. In addition, the evidence would also establish that he had a dwelling house and place of business in Australia and carried on business in Australia. These being three of the four alternative conditions prescribed by s.247(2) of the Bankruptcy Act 1966 (Cth) ("the Act").

2. Mrs Cameron was the person appointed as executor under the will of her late husband. She has not, however, applied for a grant of probate probably for two reasons; first, that so to apply could have put her in a position where her interests and duty conflicted, and second, one might infer because of the costs of such an application.

3. The affidavit verifying the statement of affairs and another affidavit setting out in some greater detail the financial circumstances of the late Mr Cameron are both sworn to by Miss Hibbert, a solicitor, acting for the applicant. Although the two affidavits are sworn on information and belief, they set out the source of that belief. Although there may be some doubt as to the final position in the estate, the evidence establishes that the liabilities in the estate exceed the assets available to meet them. In part this has come about because a mortgage, in respect of which the deceased was jointly liable in the sum of $260,000, was over property held on joint tenancy with his wife, and as a result of Mr Cameron's death accrued by survivorship to his widow.

4. Mrs Cameron, albeit not a person appointed as executrix or adminstratrix of the estate by virtue of an order, has inter-meddled in the estate in at least two ways. First, she has paid certain debts of her late husband, and second, she has dealt with at least one of his assets, being personal clothing. She is not, of course, an executrix de son tort because she is the person appointed as executrix under the will, but I am satisfied on the evidence before me that she is a person who is "administering" the estate of her late husband, as those words are used in s.247(1) of the Act.

5. A similar view was taken by Gibbs J, then sitting in the Federal Court of Bankruptcy in Re Estate of Madden; Ex parte Madden (1969) 13 FLR 1. In rejecting an argument that the words "person administering the estate" meant legal personal representative or person authorised to administer the estate, his Honour said (at 2):
   

"It seems to me that the choice of the words `a person administering the estate' was deliberate and reveals an intention to bring within the scope of the section a person who is in fact administering an estate, notwithstanding that such person is not, or is not proved to be, the legal personal representative."

1. It follows, therefore that the applicant is, in the present case, entitled to petition pursuant to s.247(1) of the Act. The present is clearly a case where no discretionary matter arises which would preclude the making of an order. There remains only one other matter that requires comment.

2. The petition sought the appointment of two private trustees jointly as trustees of the bankrupt estate. However, when regard is had to the provisions of s.248(1) and the omission of a reference to s.156A, but more particularly when one considers the provisions of s.156A(3), it seems clear that the cases in which private registered trustees may be appointed as trustees do not extend to the case of the administration under Part 11 of the Act, pursuant to s.247(1).

3. The end result is that, upon the order for administration being made, there would be no person who has been appointed trustee and the assets of the estate, by force of the Act, would vest in the official trustee.

4. Accordingly, I order that the estate of the deceased be administered in bankruptcy under Part 11 of the Act. There will be no order as to the costs of the petition.