Re Kabalan

q IN THE FEDE A
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF OUEENSLAND

- C
RE: DAVID E. WHITESIDE

Debtor

EX PARTE: ALAN KEITH HUMPHRIES
AND DOREEN BETTY HUMPHRIES
TRADING AS A.B. TRADING TIMBER
AND HARDWARE

Creditor

JUDGE MAKING ORDER: Cooper J.
WHERE MADE: Brisbane
DATE OF ORDER: 5 January, 1993
THE COURT ORDERS :-

l.

That Ross Duus, a registered trustee, be appointed receiver of and take control of the property of David E. Whiteside of 3 Kholo Crescent, Riverpoint, in the State of Queensland, until determination of Creditors Petition 9 of 1993, or earlier order, and that the applicant is not required to deposit funds for the same Ross Duus to meet his fees and expenses in taking control of the property of the debtor.
THE COURT FURTHER ORDERS:-
2. That the receiver be empowered to :

(1)

(a)

take possession of all of the property of the said David E. Whiteside;

(b)

to receive and collect the debts due to the said David E. Whiteside

(2)

Without limiting the property to which the receiver is appointed, the nature and description of the property of which the receiver is to take possession shall include the following :-

(a)

all books of account and the general records of the said David E. Whiteside;

(b)

all real and personal assets and estate wheresoever owned by the said David E. Whiteside;

RECF

(c)

all cash and other possessions of the said

David E. Whiteside;

(d)

the balances of any bank accounts of the said David E. Whiteside;

(e)

all motor vehicles, and vessels, trade equipment, stock in trade in the possession of David E. Whiteside, or belonging to the said David E. Whiteside.

( 3 ) The duties to be performed by the receiver are :-

(a) to take possession of, collect, and protect any property of the said David E. Whiteside; and
(b) to exercise his powers as receiver for that purpose.

3 .         I GRANT LIBERTY to the receiver to apply for such further orders, powers, or directions as the receiver may deem necessary to the proper discharge of his receivership.
4.        I GRANT LIBERTY to the respondent, David E. Whiteside, to apply within three ( 3 ) days after service of this order upon him for such relief as he may be advised.
5.        I ORDER that a copy of this order be served upon
Eric Muir, solicitor of the Gold Coast, within seven (7) days of the entry and sealing of this order, and that notice of this order be given forthwith by the applicant's solicitors to the said Eric Muir.

6. I FURTHER ORDER that the costs of and incidental to this application be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF OUEENSLAND

Cred. Pet. No. 9 of 1993

RE: DAVID E. WHITESIDE

Debtor

EX PARTE: ALAN KEITH HUMPHRIES
AND DOREEN BETTY HUMPHRIES
TRADING AS A.B. TRADING TIMBER
AND HARDWARE

Creditor

CORAM : Cooper 3.
PLACE : Brisbane
W: 5 January, 1993
EXTEMPORE REASONS FOR JUDGMENT

I am satisfied that there is a prima facie case made out that the circumstances surrounding the debtor's departure from Australia, and his dealing with his assets here, are such as to found a reasonable belief that his conduct is to defeat or delay his creditors. There is also a serious question as to whether in fact he intends to return to Australia.

I am also satisfied that it is an appropriate case to appoint an interim receiver of the debtor's property until the determination of the creditors petition to protect the property. There is evidence that at least some of the property has been sold and is due for settlement later this month, and that other substantial real estate holdings are on the market for sale at the present time.

THE COURT ORDERS : -
That Ross Duus, a registered trustee, be appointed receiver of and take control of the property of David E. Whiteside of 3 Kholo Crescent, Riverpoint, in the State of Queensland, until determination of Creditors Petition 9 of 1993, or earlier order, and that the applicant is not required to deposit funds for the same Ross Duus to meet his fees and expenses in taking control of the property of the debtor.

THE COURT FURTHER ORDERS:-
2 . That the receiver be empowered to :

(1)

(a)

take possession of all of the property of the said David E. Whiteside;

(b)

to receive and collect the debts due to the said David E. Whiteside

Without limiting the property to which the receiver is appointed, the nature and description of the
property of which the receiver is to take possession
shall include the following :-

(a)

all books of account and the general records of the said David E. Whiteside;

(b)

all real and personal assets and estate wheresoever owned by the said David E. Whiteside;

(c)

all cash and other possessions of the said David E. Whiteside;

(d)

the balances of any bank accounts of the said David E. Whiteside;

(e)

all motor vehicles, and vessels, trade equipment, stock in trade in the possession of David E. Whiteside, or belonging to the said David E. Whiteside.

(3) The duties to be performed by the receiver are :-

(a) to take possession of, collect, and protect any property of the said David E. Whiteside; and
(b) to exercise his powers as receiver for that purpose.
3. I GRANT LIBERTY to the receiver to apply for such further orders, powers, or directions as the receiver may deem necessary to the proper discharge of his receivership.
I GRANT LIBERTY to the respondent, David E. Whiteside, to apply within three (3) days after service of this order upon him for such relief as he

may be advised. I ORDER that a copy of this order be served upon Eric Muir, solicitor of the Gold Coast, within seven
(7) days of the entry and sealing of this order, and that notice of this order be given forthwith by the applicant's solicitors to the said Eric Muir.

6. I FURTHER ORDER that the costs of and incidental to
this application be reserved.
I certify that this and the three (3) preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 25 February, 1993. : l . '

(((,,l(( 1 ( ( , , , ( ( h < t ' t >
Associate

Solicitors for the Applicant: McLaughlins
Date of Hearing: 5 January, 1993

The case of Re Kabalan involves the appointment of a receiver for the property of David E. Whiteside, a debtor in bankruptcy proceedings, in response to an application by Alan Keith Humphries and Doreen Betty Humphries, trading as A.B. Trading Timber and Hardware, as creditors. The case was heard in the Federal Court of Australia, General Division, Bankruptcy District of the State of Queensland, presided over by Cooper J. The creditors sought the appointment of a receiver due to concerns about the debtor's conduct and intentions regarding his assets, particularly his recent departure from Australia.

The primary legal issue before the court was whether there were reasonable grounds to believe that the debtor's actions were intended to defeat or delay his creditors. Additionally, the court had to determine if the appointment of an interim receiver was warranted to protect the debtor's assets during the pendency of the creditors' petition. The court found that there was a prima facie case suggesting that the debtor's actions and conduct warranted such concerns and that it was appropriate to appoint a receiver to safeguard his property.

Cooper J granted the application for the appointment of Ross Duus as receiver over the debtor's property. The receiver was empowered to take possession of all of the debtor's property, including books of account, real and personal assets, cash, bank balances, motor vehicles, vessels, trade equipment, and stock in trade. The court also outlined the receiver's duties, which involved taking possession of, collecting, and protecting the debtor's property. Furthermore, the court granted liberty for the receiver to apply for further orders as necessary and allowed the debtor to apply for relief within three days of the order's service. The court also ordered that notice of the order be served on the debtor's solicitor and reserved the costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

JUDGE MAKING ORDER:	Cooper J.
WHERE MADE:	Brisbane
DATE OF ORDER:	5 January, 1993
THE COURT ORDERS :-

(a)	to take possession of, collect, and protect any property of the said David E. Whiteside; and
(b)	to exercise his powers as receiver for that purpose.

I am also satisfied that it is an appropriate case to appoint an interim receiver of the debtor's property until the determination of the creditors petition to protect the property. There is evidence that at least some of the property has been sold and is due for settlement later this month, and that other substantial real estate holdings are on the market for sale at the present time.
THE COURT ORDERS :	-

(a)	all books of account and the general records of the said David E. Whiteside;
(b)	all real and personal assets and estate wheresoever owned by the said David E. Whiteside;
(c)	all cash and other possessions of the said David E. Whiteside;
(d)	the balances of any bank accounts of the said David E. Whiteside;
(e)	all motor vehicles, and vessels, trade equipment, stock in trade in the possession of David E. Whiteside, or belonging to the said David E. Whiteside.

Solicitors for the Applicant:	McLaughlins
Date of Hearing:	5 January, 1993