Re McComish, P.A. Ex Parte Putnin, B. v McCormish, T.P

[1990] FCA 803

JUDGMENT NO. $03 .... /?.Q,

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1
GENERAL DIVISION	1
BANKRUPTCY DISTRICT	1
OF THE STATE OF	1
WESTERN AUSTRALIA	1	NO. 476 OF 1989
RE: PETER ANTHONY McCOMISH
EX PARTE: BERNARD PUTNIN as trustee

in the estate of

PETER ANTHONY McCOMISH

and

TERESA PEARSON McCOMISH

Respondent

CORAM:	LEE J.	11 MAR 1991-
DATE :

My decision in this matter is as follows. Firstly,

I acknowledge that every encouragement should be given to

trustees to be vigilant and to take such steps as they think fit to protect the estates of bankrupts and to investigate matters relating to the estates of bankrupts that may provide better results for creditors and deter other persons who may be tempted for their own purposes and advantage to so order their affairs as to be in breach of the provisions of the

be available in arms-length transactions and his task may be	trustee may not have access to information that may otherwise
Bankru~tcv	Act 1966.
There is a particular need for a trustee to give close scrutiny to family dealings.	In such cases it may be

difficult for the trustee to ascertain the true facts. The

task may be made that much more difficult.

Secondly, the Court should be ready to ensure that
there is no opportunity for fraud to be practised upon

creditors by bankrupts and to see that the provisions of the

pankru~tcv && 1966 are not taken lightly by anyone.

Having said that, in this case, I am of the view that the case proffered by the trustee in support of the application for orders restraining Mrs McComish from either acting with the property or requiring her to deal with proceeds of sale in a certain way, if she does sell the property, is insufficient to allow the Court to make the order sought.

I am not satisfied that there has been an arguable case demonstrated in respect of the operation of ss.120 and 121 of the Bankru~tcv Act 1966 such as would justify the Court making orders to vary or restrain the dealing with the property concerned. And my reasons for that, I think, have been made clear in exchanges with counsel. Not that exchanges with counsel are to be taken as the delivery of reasons or the	necessary expression of any view on the part of the bench at
any time.
Nevertheless, the questions that I have put to Mr Bower have been put with the purpose of eliciting whether there is a cogent, contrary argument to test the applicant's argument, and I have not been satisfied that the applicant's

( , ' * 3.

argument can be sustained or is such as would justify any injunctive action at all. So, for those reasons, I am of the view that the application should be dismissed and I, therefore, dismiss it.

I certify that this and the preceding

three (3) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate:

Date:  q M4-t 1490

Counsel for the Applicant:  M r R.W. Bower

Solicitors for the Applicant: Corser & Corser

Counsel for the Respondent: Mr G.J. O'Hara
Solicitors for the Respondent: Kott Gunning

Date of Hearing: 9 May 1990 Date of Judgment: 9 May 1990