Re Jones, P.R. & Anor v Ex parte Coastal Framing Company Pty Ltd

[1987] FCA 316

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IN THE m m COURT OF AUSTRALIA	1
GENERAL DIVISION	) QLD Part X 212 of 1986

QLD Part X 213 of 1986

BANKRUPTCY DISTRICT OF THE SOU!CHERN )

DISTRICT OF THE STATE OF OUEENSLAND 1

RE: PAUL ROY JONES

Debtor

AND: JENNIFER LOUISE JONES

Debtor

EX PARTE: COASTAL FRAMING CO. PTY. LTD.

Creditor

MINUTES OF ORDER

J U E E MAKING ORDER:

DATE OF ORDER:

MADE: BRISBANE	WHERE
THE COURT ORDERS THAT:

1. The time for execution by Ernest George Harris and

Wilson Joseph Wilde of the Deed of Assignment dated

the 13th day of October 1986 and made between Paul

Roy Jones as Debtor and Ernest George Harris and

Wilson Joseph Wilde as Trustees be extended to the

13th day of October 1986.

2. The time for execution by Ernest George Harris and

Wilson Joseph Wilde of the Deed of Assignment dated

13 October 1986 and made between Jennifer Louise

Jones as Debtor and Ernest George Harris and Wilson

Joseph Wilde as Trustees be extended to 13 October

1986.

3.	Graham Lindsay Starkey be appointed trustee of the
Deed of Assignment dated 13 October 1986 between

Paul Roy Jones as Debtor and Ernest George Harris

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and Wilson Joseph Wilde as Trustees in place of

I Ernest George Harris and Wilson Joseph Wilde.

4. Graham Lindsay Starkey be appointed trustee of the Deed of Assignment dated 13 October 1986 between

Jennifer Louise Jones as Debtor and Ernest George

Harris and Wilson Joseph Wilde as Trustees in place

of Ernest George Harris and Wilson Joseph Wilde.

5. All funds with no deduction whatever received by

Messrs. Wilde and Harris be paid to Mr. Starkey.

6. The costs of Paul Roy Jones and Jennifer Louise Jones and Coastal Framing Co. Pty. Ltd., of and

incidental to this application, be taxed and be

treated as coming within the terms of s.l09(l)(a)

of the Bankruptcv Act.

7. Any property whatever including documents received

by Messrs. Wilde and Harris in their capacity as

trustees must be delivered forthwith to the newly

appointed trustee Mr. Starkey.

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

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IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD Part X 212 of 1986 QLD Part X 213 of 1986

BANKRUPTCY DISTRICT OF THE SOIPrmERN )

DISTRICT OF THE STATE OF OUEENSLAND

RE: PAUL ROY JONES :'.

Debtor

AND: JENNIFER LOUISE JONES

Debtor-

EX PARTE: COASTAL FRAMING CO. PTY. LTD.

Creditor

PINCUS J. 25 MAY 1987

EX TEMPORE REASONS FOR JUDGMENT

In this matter, an application has been made in respect

of each debtor that the time f o r execution of the deed of

assignment dated 13 October 1986 be extended to that date, and

that Mr. G.L. Starkey be appointed trustee. I propose to make

those orders, which seem to me to be convenient; that is, I will

order in terms of paragraphs 1, 2, 3 and 4 of the application.

The other two questions which have arisen concern a sum

paid to the previously intended trustees, Messrs. Wilde and

Harris, and to costs. The two matters are interrelated because

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Mr. Murphy, who has appeared here today says that the former

trustees desire to retain fees out of the sums paid to them.

In my opinion, the attitudes of Messrs. Harris and Wilde

is not exemplary. They signed- the deed late, and then did not

take any step to clarify the position other than to write a

letter, which is exhibit 1. Subsequently to that, they seem to

have been quite inactive, and they did not have the courtesy to

appear on this application until specifically requested to do so;

nor have they given the Court any concrete information on points which are relevant, namely, what property they have and why they do not want to be trustees.

In the circumstances the appropriate course is to order

that all funds, with no deduction whatever, received by Messrs.

Wilde and Harrls be paid forthwith to Mr. Starkey. There is, I am

conscious, a dispute as to the amount of those funds, but whether it be $3,000 to $4,000, or the lesser sum mentioned by Mr. Murphy,

the effect of my order will be that the whole sum they have

received must be paid over,	so they will receive no fees, nor
costs.

The more difficult question arises with respect to the

application that the trustee pay the costs of today's proceedings.

In the circumstances, it does not seem proper to order that they

pay those costs, and I think they should come out of the estate.

I do not, however, propose to make any provision for the trustees'

costs of appearance today, which they will have to bear

themselves. It seems proper that the costs of the applicants,

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3.

Paul Roy Jones and Jenrlifer Louise Jones, should come out of the

I estate so far as they relate to this application, and also that

the costs of Coastal Framing Co. Pty. Ltd. should come out of the

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estate.

Apart from the orders I have made in terms of paragraphs

1, 2 , 3 and 4 of the application filed on 16 April 1987, it will

be ordered that the costs of Paul Roy Jones and Jennifer Louise

Jones, and those of Coastal Framing Co. Pty. Ltd., of and

incidental to this application, be taxed and treated as costs

falling within s.l09(l)(a) of the Bankruptcy Act.

I decline to order the trustees to pay the costs, but

will make no provision for payment of the trustees' costs in

respect of today's application; they will have to bear those

themselves. I will order that any property whatever, including

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documents, received by Messrs. Wilde and Harris in their capacity

as trustees, must be delivered forthwith to the newly appointed

trustee, Mr. Starkey.

: certlfy that thls and the 2- preced~ng

pages are a true copy of the reasons for

-	judgment hcrein of His Honour
Mr. Justice Plncus
Datea 25 ~ c IqSl y

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