Re Hull, James Herbert Ex Parte Hull, Susan Marie

[1997] FCA 521

IN THE FEDERAL COURT OF AUSTRALIA  No QG 7262 of 1997
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

RE:JAMES HERBERT HULL

Debtor

EX PARTE:SUSAN MARIE HULL

Applicant

CORAM:Drummond J

DATE:2 June 1997

PLACE:Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The costs of the respondent of today's hearing be paid by Mr Patrick White, counsel for the applicant, personally.

2. No order as to Sunstate Credit Union's costs for today's hearing be made.

3. The matter is adjourned to 9.30 am on 24 June 1997.

NOTE:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA  No QG 7262 of 1997
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

RE:JAMES HERBERT HULL

Debtor

EX PARTE:SUSAN MARIE HULL

Applicant

CORAM:Drummond J

DATE:2 June 1997

PLACE:Brisbane

REASONS FOR JUDGMENT

This is an application by the wife of a person who was made bankrupt, on his own petition, presented on the eve of a hearing of a contested property settlement in Family Court proceedings between them.  The substantial issue concerns whether moneys in a superannuation fund held on behalf of the bankrupt is property available to the Trustee in the bankruptcy for distribution to the bankrupt's creditors.  The evidence indicates that, without the superannuation moneys, the bankrupt was insolvent at the date of presentation of his petition and remains insolvent, but that, with access to a substantial part of the superannuation moneys, all his creditors could be paid out.

The Family Court has imposed freezes on him accessing these superannuation moneys.  The evidence indicates that, because of his retrenchment, he may have an entitlement to call on the trustee of the superannuation fund to pay over a substantial amount, of the order of $103,000, additional to the $23,000 to which he has obtained access following an order of the Family Court.  There is a further $25,000 preserved compulsorily in the superannuation fund.

The matter is related to the issue dealt with O'Loughlin J in Re Coram (1992) 109 ALR 353, a decision to which counsel for the respondent referred me, but is not resolved by that decision. There is a substantial question to be determined as to whether the property of the bankrupt, within the meaning of that term as defined in s 5 the Bankruptcy Act 1966 (Cth), extends to such rights as the bankrupt has, apart from the Family Court order, to call for payment to him of superannuation moneys by the trustee of the superannuation fund.

It is apparent, from the course proceedings have taken today, that counsel for the applicant has made no attempt to prepare to deal with this substantial point.  He has a familiarity with the facts of the case, but has approached the matter on the basis that it is sufficient for him to identify the legal problems and, without making any attempt to prepare proper submissions, proposes that the matter should be left to the Court to resolve.  I regard that as totally unacceptable, so far as counsel is concerned.

At the outset of the hearing there was reference to an affidavit anticipated but not yet ready.  When asked, counsel for the applicant nevertheless said that the matter was ready to proceed.  The affidavit, which exhibits certain communications with the trustee, including a copy of the trustee's unsigned report, has been handed up in the course of the hearing.  But this does not detract from my clear impression that counsel for the applicant has made no serious attempt to look at the issues that he is asking the Court to resolve and to prepare an argument in support of the orders he seeks.  I am not prepared to allow a hearing to proceed on that basis and I propose to adjourn the application to 9.30 am on 24 June 1997.

I certify that this and the preceding two
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.

Associate:

Date:2 June 1997