Re Censori, E.E. & Anor v Ex parte Official Trustee in Bankruptcy

PE:

W P.W.TE:

L..

1N.S.GJ.)

F t v

Limlted.

Mr.

Fa r t r idqe ,

who

i s

descr ibed as

t -ontrnl l lnq

trustee. Mr.

Harper, descr ibed as commercial manacrer

t n Mr.

Partrldqe, Miss Rosemary

Volunq, sald t o

be a sec re t s rp ,

.tnd one of

the debtors. Mr.

El iseo Censori .

The

? l f f e rence

be tween

t he

amoun t s

received

and the amounts

p a i d

i s $ 4 9 7 . 1 7 .

There

n o

e x p l a n a t i o n

the ev idence as to

how

t h i s

s u m w a s

d i s b u r s e d .

i f

was

d i s b u r s e d ,

how

o t h e r v l s e

i t has

been

accounted

for.

I n %he

licrht

(2f the

f a c t ths? the

,amounts owed t o the

cr%ditors

?xceed

the

sum of $48,900.

~t - J O L I ~ ~

? e m t o

that f o r

p r a c t i c a l

purposes the

sum

$?.n00.

C J h l C h

represented

the

divldend

18 c e n t s

i n

t h e

d o l l a r .

i s

a l l

tha t

the c r e d i t o r s

will

receirre.

There

1 s PO

suaaes t lnn

tha t

there

a r e anv

o ther ~ s s c t s whlch

mav be real~sed

a n v 83ther source

from

which the t rustee

m a y 7

recover

rnonev.

m v o p i n i m .

one has

t o be

p r a c t ~ c ~ l

3bnu t

*he matter.

There is

no basis Iupon whlch the credltnr.

rail i n f s c t c e c e l v n

v v fur ther

d iv ldend.

I have

s a i d .

f u r practical purpnses

t h e

flividend

alreadv

paid

i s

the

L i n a l

fdivldend.

I n

tlhoce

frircumstances. I have

reached

the concluslnn

tha t , althoucrh the

deed of

?.sslanment

%as not a deed of assianmenc

under

Fart :<

and

mlaht otherwlse

have

been

avoided

under

sub-sec.

2 2 2 1 2 ) . I

should

not make the

order

because

khe

app l i ca t ion

t o

avoid

the

sssianment

w a s not

made

u n t i l a f t e r

t h e f l n a l d l v i d e n d

was

pald.

E..

Dlscussion ensued as to the form

of relief xhich nunht to b?

rrranted.

His Honour then continued:-

HIS HONOUR:

I declare that the applicatlon made

on 31 October

1985 was

made after the Favment

the

final dividend

p a ~ d

pursuant, t o the deed of

assinnmenf. referred t n in paracrraph 1 of

the appllcatinn.

The aopllcation is otherwlce dismissed. There

m11 b?

libertv t n apF lv .

CaseChat Overview and Summary

In the matter of Re Censori, E.E. & Anor v Ex parte Official Trustee in Bankruptcy, the court was presented with a dispute involving the Official Trustee in Bankruptcy, Mr. Fartridge, and a commercial manager, Mr. Harper. The case centred around the distribution of assets following a bankruptcy proceeding, with a particular focus on the handling of a discrepancy between the amounts received and those paid out. The debtors in this case included one Mr. Eliseo Censori and Miss Rosemary Valunq, the latter also serving as a secretary. The primary legal issue that the court had to address was whether the deed of assignment, which was not in the correct form, could be avoided under the relevant legal provisions, and if so, whether it could still be avoided after the final dividend had been paid to the creditors. The court had to consider whether the application to avoid the deed of assignment was made within a reasonable time frame, and if the avoidance of the assignment would be in the best interests of the creditors and the bankrupt estate.

The court examined the evidence and determined that the amounts owed to the creditors exceeded the sum of $48,900. The difference between the amounts received and paid out was $497.17, with no explanation provided on how this sum was disbursed or accounted for. The court concluded that, in practical terms, the sum of $49,400 represented the dividend of 18 cents in the dollar that creditors would receive. The court found that there were no other assets or sources from which the trustee could recover additional funds. Given the practical implications and the fact that the application to avoid the assignment was made after the final dividend had been paid, the court reached the conclusion that the deed of assignment should not be avoided. The application was dismissed, and the court noted that there would be liberty to apply for further relief if appropriate.

The final orders of the court were that the application made on 31 October 1985 was declared to have been made after the payment of the final dividend pursuant to the deed of assignment. The application was dismissed, and there would be liberty to apply for further relief if necessary. This outcome was reached based on the court's assessment that the avoidance of the deed of assignment would not serve the best interests of the creditors or the bankrupt estate, particularly since the final dividend had already been distributed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established