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

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

( , ' *

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

In the case of Re McComish, P.A. Ex Parte Putnin, B. v McCormish, T.P, the Federal Court of Australia was presented with an application by the trustee of a bankrupt's estate, Bernard Putnin, to restrain Teresa Pearson McComish from dealing with property belonging to the estate of Peter Anthony McComish. The application sought orders to either prevent Mrs McComish from acting with the property or to direct her to deal with proceeds of sale in a particular way if she sold the property. The matter was heard in the Bankruptcy District of the State of Western Australia.

The legal issues the court had to address were whether the trustee had demonstrated an arguable case that sections 120 and 121 of the Bankruptcy Act 1966 had been breached, warranting the court's intervention. Section 120 of the Act prohibits certain transactions that are deemed void against the trustee, while section 121 allows for the court to set aside transactions that were entered into for the purpose of defrauding creditors. The court examined whether the evidence provided by the trustee was sufficient to justify injunctive relief.

The court, presided over by Justice Lee, concluded that the trustee had not demonstrated an arguable case to support the application. Justice Lee noted that while it is crucial for trustees to vigilantly protect the bankrupt's estate and investigate family dealings, the evidence provided by the trustee in this instance was insufficient to warrant the court's intervention. The court was not satisfied that the trustee had shown that there was a cogent argument that could counter his claims, and thus, the application for orders was dismissed.

In light of the court's decision, the application was dismissed without any further orders being made. Justice Lee certified that the reasons for judgment reflected the true copy of the proceedings, and the judgment was certified as of the date it was delivered.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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

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