Re Dare, T.J. Ex parte Dare, T.J - [1992] FCA 786

Re: TRACY JOY DARE; Ex Parte TRACY JOY DARE
ART No. 2 of 1992
FED No. 786
Bankruptcy
(1992) 110 ALR 659
(1992) 38 FCR 356

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Bankruptcy - registration as trustee - applicant employed by firm of accountants - court to be satisfied that arrangements as to fees and access to employer's facilities ensure independence - s. 165(1)(b) of Bankruptcy Act 1966 not necessarily infringed where trustee's fees paid over to employer.

Bankruptcy Act 1966 (Cth) - ss. 155 and 165

Re Hurt; Ex parte Hurt (1988) 80 ALR 236

Lamb v Registrar in Bankruptcy (Vic) (1984) 56 ALR 521

HEARING

BRISBANE #DATE 21:10:1992

Counsel for the applicant: J.F. Curran

Solicitors for the applicant: Cleary and Hoare

ORDER

The Court orders that:

1. The applicant, Tracy Joy Dare, be registered as a trustee in bankruptcy upon the applicant entering into a bond in the amount prescribed for the purposes of s. 155(3) of the Bankruptcy Act 1966 (Cth) and Rule 61(1) of the Bankruptcy Rules with such surety or sureties as is or are approved by the Registrar.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant applies under s. 155(2) of the Bankruptcy Act 1966 (Cth) for registration as a trustee in bankruptcy.

I am satisfied that she is well-qualified for registration.
The applicant has tertiary, including post-graduate, qualifications in accountancy and has completed the Insolvency Practitioners Association of Australia Advanced Insolvency Course; she is an associate member of the Institute of Chartered Accountants.
In February 1982 the applicant commenced employment with a firm of chartered accountants and has remained in the employ of that firm or the firms with which it and its successors have merged. She is presently a senior manager in the Reconstruction and Insolvency Division of Messrs. KPMG Peat Marwick.
Over the last ten years she has had very extensive involvement in a wide range of insolvency and other administrations, including numerous administrations in bankruptcy. While she herself has not had personal responsibility for any such administration, her involvement has, over recent years at least, been at a senior level.
The Official Receiver has reported that he is satisfied, after having interviewed the applicant, that she has a good knowledge of the Act and a good understanding of the responsibilities of a trustee in bankruptcy and that generally, she is a proper person to be registered as a trustee.
It is the fact that she is in employment that requires further consideration to be given to her application.
It was held in Lamb v Registrar in Bankruptcy (Vic) (1984) 56 ALR 521 that the fact that a person is an employee is not necessarily incompatible with her being registered as a trustee in bankruptcy, a construction of the relevant provisions of the Act which is confirmed by subsequent amendments to the Bankruptcy Rules: see rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] FCA 786
Decision Date: 21 OCTOBER 1992

CaseChat Overview and Summary

In the case of Re Dare; Ex parte Dare, the Federal Court was tasked with deciding whether Tracy Joy Dare, employed by a firm of accountants, could be registered as a trustee in bankruptcy. The central dispute was whether her employment arrangement with the firm would compromise her independence, a requirement under section 165(1)(b) of the Bankruptcy Act 1966. The applicant, Tracy Joy Dare, sought registration as a trustee while maintaining her employment with the firm, arguing that her fees were to be paid to the firm but with no direct financial benefit to her, thereby preserving her independence.

The court had to ascertain whether Dare's employment and the arrangement for her fees being paid over to her employer contravened the statutory independence requirement. The court examined whether the applicant's employment with the firm, coupled with the payment of her fees to the firm, would ensure her independence in carrying out her duties as a trustee. Specifically, the court needed to determine if the statutory provision was contravened by the payment of fees to the employer, considering the broader context of her employment conditions.

The court found that Dare's employment and fee arrangement did not necessarily infringe on the independence requirement stipulated by the Act. The court reasoned that if Dare's fees were paid over to her employer without her receiving any direct financial benefit, this arrangement would ensure her independence. Consequently, the court held that the applicant could be registered as a trustee upon entering into a bond with a surety approved by the Registrar, in accordance with section 155(3) of the Bankruptcy Act 1966 and Rule 61(1) of the Bankruptcy Rules.

The court ordered that Tracy Joy Dare be registered as a trustee in bankruptcy, contingent on her entering into a bond with an approved surety. The settlement and entry of orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

1. The applicant, Tracy Joy Dare, be registered as a trustee in bankruptcy upon the applicant entering into a bond in the amount prescribed for the purposes of s. 155(3) of the Bankruptcy Act 1966 (Cth) and Rule 61(1) of the Bankruptcy Rules with such surety or sureties as is or are approved by the Registrar.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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