Re MacPhee, Kenneth Ex Parte MacPhee, Kenneth Re MacPhee, Kenneth Ex Parte Sailington Pty Ltd

[1996] FCA 428

IN THE FEDERAL COURT OF AUSTRALIA         )
GENERAL DIVISION  )

BANKRUPTCY DISTRICT OF THE          )
STATE OF QUEENSLAND  )

No. QP 254 of 1996

RE:KENNETH PETER MACPHEE

EX PARTE:KENNETH PETER MACPHEE

No. QP 132 of 1996

RE:KENNETH PETER MACPHEE

EX PARTE:SAILINGTON PTY LTD

MINUTES OF ORDER

JUDGE MAKING ORDER:       Spender J

DATE OF ORDER:            13 May 1996

WHERE MADE:               Brisbane

THE COURT DIRECTS THAT:

(1)the first creditor's petition No. QP 132 of 1996 be dismissed as against both Kenneth Peter MacPhee and Rodney Frederick Hardacre;

(2)the Registrar accept the petition No. QP 254 of 1996, being the debtor's petition of Mr MacPhee presented on 17 April 1996;

(3)that the costs of the petitioning creditor, Sailington Pty Ltd, in petition No. QP 132 of 1996 as against MacPhee, including reserved costs, be taxed and paid out of the estate of Kenneth Peter MacPhee as if they were the costs of a successful petitioning creditor.

(4)there be no order as to the costs of Sailington Pty Ltd in respect of the creditor's petition against Rodney Frederick Hardacre, including any reserved costs.

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 QUEENSLAND  )

No. QP 254 of 1996

RE:KENNETH PETER MACPHEE

EX PARTE:KENNETH PETER MACPHEE

No. QP 132 of 1996

RE:KENNETH PETER MACPHEE

EX PARTE:SAILINGTON PTY LTD

CORAM:     Spender J
DATE: 13 May 1996
PLACE:     Brisbane

REASONS FOR JUDGMENT

There are before the Court two petitions.  A creditor's petition No QP 132 of 1996 against Kenneth Peter MacPhee and Rodney Frederick Hardacre, which petition was presented on 26 February 1996.  There is also a debtor's petition No. QP 254 of 1996, Mr MacPhee having presented his petition on 17 April 1996.  The Bankruptcy Act 1966 requires each of the petitions now to be referred to the Court for directions.

It appears that the creditor's petition against the two debtors has not been served on Mr MacPhee and the solicitor on behalf of the petitioning creditor consents to the dismissal of the petition against Kenneth Peter MacPhee on the understanding that the debtor's petition will be the
subject of a direction to the Registrar to accept it and conditioned also on the petitioning creditor's costs in respect of the creditor's petition against the debtor, Mr MacPhee in the creditor's petition, be protected by an appropriate order.

There is a further complication in that, this morning, there was attempted to be filed, a consent by Phillip Gregory Jefferson to act as trustee of the estate of Kenneth Peter MacPhee in the event that he becomes bankrupt.  That consent was dated 13 May 1996.  In the creditor's petition there was a consent dated 23 January 1996 by Mr Jefferson as well as by Jay Arscott Stevenson consenting to the trustees of the joint and several estates of Kenneth Peter MacPhee and Rodney Frederick Hardacre or, if only one of them becomes a bankrupt, as trustee of the estate of that debtor.  That consent was filed on 26 February 1996. 

Having regard to the provisions of s 156A and in particular sub-section (3) of that section, it seems to me that I ought to decline to permit Mr Jefferson's more recent consent to be filed.  The effect of the Act is that when a direction is given to the Registrar to accept the debtor's petition of Mr MacPhee, Mr Stevenson and Mr Jefferson will become trustees of his estate by virtue of the consent which was filed on 26 February 1996 in the creditor's petition.

I therefore direct that first the creditor's petition, No QP 132 of 1996, be dismissed as against both Kenneth Peter MacPhee and Roderick Frederick Hardacre.

I direct that the Registrar accept the petition No QP 254 of 1996, being the debtor's petition of Mr MacPhee, which was presented on 17 April 1996. 

I direct that the costs of the petitioning creditor, Sailington Pty Ltd, in petition No QP 132 of 1996 as against Kenneth Peter MacPhee, including reserved costs, be taxed and paid out of the estate of Kenneth Peter MacPhee as if they were the costs of a successful petitioning creditor. 

I direct that there be no order as to the costs of Sailington Pty Ltd in respect of the creditor's petition against Roderick Frederick Hardacre, including any reserved costs.

I certify that this and the  preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate
  Date: 13 May 1996

No appearance for Kenneth Peter MacPhee

Solicitors for Sailington Pty Ltd     :  M J Murray & Associates

Date of Hearing  :  13 May 1996