Re de Kantzow, S. Ex Parte de Kantzow, S. - [1992] FCA 196

Re: SERGE DE KANTZOW
Ex Parte: SERGE DE KANTZOW and GEOFFREY RALPH JAMES
Nos. 3255 and X172 of 1991
FED No. 196
Bankruptcy
(1992) 107 ALR 219
(1992) 35 FCR 74

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Bankruptcy - Bankruptcy Act Pt. X - validity of a second written authority allowing a solicitor to call a meeting of creditors - whether an authority is spent by adjournment - impediments to the issue of a second authority - difference between an authority to a solicitor and to a registered trustee.

Bankruptcy Act 1966 (Cth): ss. 188, 197.

HEARING

SYDNEY

#DATE 31:3:1992

Counsel for the Applicant : Mr R.J. Weber

Solicitors for the Applicant : Henry Davis York

ORDER

By the authority in writing given on 31 March 1992 by Serge de Kantzow and consented to in writing by Geoffrey Ralph James on the same day, the appointment of Geoffrey Ralph James is not rendered invalid by reason of the signing by Serge de Kantzow on 18 September 1991 of an authority in writing to a solicitor to call a meeting of his creditors.

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

JUDGE1

This is an ex parte application made by Serge de Kantzow and Geoffrey Ralph James for a declaration that, by an authority in writing given on 31 March 1992 by Mr de Kantzow and consented to in writing by Mr James on the same day, Mr James was validly appointed the controlling trustee of the estate of Mr de Kantzow under Part X of the Bankruptcy Act 1966 ("the Act").

The matter has both commenced and been heard to-day on a final basis as a matter of urgency for reasons that will appear from the facts.
On 18 September 1991 Mr de Kantzow signed an authority allowing Mr Newton, a solicitor, to call a meeting of his creditors for the purpose of having his affairs dealt with under Part X of the Act. The solicitor despatched a notice of meeting dated 8 October 1991 which was held at the offices of the solicitors on 23 October 1991. Mr de Kantzow's statement of affairs, prepared for the purposes of the Part X meeting, discloses a somewhat complicated financial position. It is sufficient for present purposes to say that it reveals an estimated deficiency of something in excess of $4 million.
The meeting of creditors held on 23 October was adjourned to 27 November 1991, then adjourned again to 19 February 1992 and 26 February 1992 when it was reconvened. There are minutes of the meeting of creditors as reconvened held on 26 February 1992; but the minutes are not accurate in every respect. There is some conflict in the evidence as to one particular matter, namely, it appears that a resolution was put to the creditors on 26 February to accept a composition of Mr de Kantzow and that it…

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 196
Decision Date: 31 MARCH 1992

CaseChat Overview and Summary

In the case of Re de Kantzow, S. Ex Parte de Kantzow, S., the Federal Court was tasked with determining the validity of a second written authority given by a bankrupt to a solicitor, following an initial authority granted to a registered trustee. The central issue was whether the authority granted to the solicitor could call a meeting of creditors, despite an earlier authority having been issued to a registered trustee. This raised questions about the legal implications of issuing multiple authorities in bankruptcy proceedings and the effect of adjournments on the validity of such authorities.

The legal issue before the court was whether the second written authority issued by Serge de Kantzow to Geoffrey Ralph James on 31 March 1992 was valid, given that a prior authority had been issued to a solicitor on 18 September 1991. The court needed to consider the principles governing the issuance of multiple authorities and whether an authority could be considered spent due to an adjournment. Furthermore, the court had to distinguish between an authority granted to a solicitor and one granted to a registered trustee.

The court examined the provisions of the Bankruptcy Act, particularly focusing on the conditions under which multiple authorities could be issued. It determined that an authority is not necessarily rendered invalid by a subsequent adjournment or the issuance of another authority. The court also clarified that there is a distinction between an authority given to a solicitor and one given to a registered trustee. The key factor was the consent of the parties involved and whether there were impediments to the issuance of a second authority. The court concluded that the authority dated 31 March 1992 was valid, as it was given with the consent of Geoffrey Ralph James and was not impeded by the earlier authority.

The court ordered that the appointment of Geoffrey Ralph James as the person to call the meeting of creditors was not rendered invalid by the prior authority given to the solicitor on 18 September 1991. 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

By the authority in writing given on 31 March 1992 by Serge de Kantzow and consented to in writing by Geoffrey Ralph James on the same day, the appointment of Geoffrey Ralph James is not rendered invalid by reason of the signing by Serge de Kantzow on 18 September 1991 of an authority in writing to a solicitor to call a meeting of his creditors.

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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