Re McGoldrick, I.a. Ex Parte Australia & New Zealand Banking Group Ltd v Official Trustee in Bankruptcy

[1992] FCA 146

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BANKRUPTCY ACT 1966 ~ ~ D G M l i E N T NO. .?% .7 f*., ! .

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	1 No. VB 385 of 1989
STATE OF VICTORIA	1

Re :	IAN ANDREW McGOLDRICK
(a bankrupt)  - .

Debtor

Ex Parte	:	AUSTRALIA AND NEW
ZEALAND BANKING GROUP I ! I.
- LTD.

Applicant S ,

And : THE OFFICIAL TRUSTEE

IN BANKRUPTCY

First Respondent	,.
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And :  PASQUALE VICECONTE r

Second Respondent	!
; ;
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I

coram:	Olney J
Place:	Melbourne
Date:	25 March 1992
(a)	the money held on deposit by Australia and New Zealand Banking Group Limited in the joint names of Pasquale Viceconte and the bankrupt (the deposit money) did not
the Official Trustee in Bankruptcy at the time of the form part of the estate of the bankrupt which vested in

MINUTE OF ORDERS

THE COURT DECLARES that

bankruptcy;

(b)	with effect from 11 July 1988, Rodaley Pty. Ltd. became beneficially entitled to the deposit money;
(c)	the settlement of the deposit money is not void as against the Official Trustee in Bankruptcy.

and ORDERS that

1.   the application of Australia and New Zealand Banking Group Limited filed herein on 20 June 1991 be dismissed;

2.   the application of the Official Trustee in Bankruptcy filed herein on 9 July 1991 be dismissed;

3.   the costs of Australia and New Zealand Banking Group Limited and of Pasquale Viceconte of and incidental to the said applications filed on 20 June 1991 and 9 July

herein on 18 July 1991 be taxed as for one application 1991 and of the application of Pasquale Viceconte filed

and paid by the Official Trustee in Bankruptcy;

4.   Australia and New Zealand Banking Group Limited be restrained from disbursing the deposit money for a period of 14 days from the date of this order and if within that time notice of appeal be filed, such restraint is to continue until the hearing and determination of the appeal;

5.    the time within which notice of appeal may be filed be extended to 14 days after the date on which the costs order herein was made.

NOTE :	Settlement and entry of orders is dealt with in rule
124 of the Bankruptcy Rules.

BANKRUPTCY ACT 1966

IN THE F E D E W COURT OF AUSTRALIA	)
GENERAL DIVISION	\
BANKRUPTCY DISTRICT OF THE	1 NO. VB 385 of 1989
STATE OF VICTORIA	)

Re :	IAN ANDREW McGOLDRICK
(a bankru~t)  - ,

Debtor

Ex Parte:  AUSTRALIA AND NEW
ZEALAND BANKING GROUP
LTD.

Applicant

And : THE OFFICIAL TRUSTEE

IN BANKRUPTCY

First Respondent

And :  PASQUALE VICECONTE

Second Respondent

Coram:	Olney J
Place:	Melbourne
Date:	25 March 1992

REASONS

When judgment was given in this matter of 26 February 1992 I reserved the question of costs for further argument. Having heard counsel for each party on 4 March 1992 I reserved my decision on the issue.

In my opinion the Official Trustee should pay the costs of both the AN2 Bank and Pasquale Viceconte. Although 3 separate applications were before the Court, one issued by each of the 3 parties, the matter was conducted as a single proceeding and the costs should be taxed as a single bill by each party entitled to costs.

The ANZ Bank initiated the original proceedings. It had retained the deposit money at the request of the Official Trustee for a considerable period during which there was a long and inconclusive exchange of correspondence. It acted reasonably in filing the application dated 20 June 1991 and in support of the application it supplied affidavit evidence that was of assistance to the Court, and which was not available to the other parties. Any claim which it advanced to entitlement to the deposit money was not vigorously pursued and in any event occupied little of the Court's time.

Viceconte was properly made a party to the applications first of the ANZ Bank and later, of the Official Trustee. The deposit money was held in the joint names of the bankrupt and Viceconte and Viceconte was the person authorised to control

the disbursement of it. It may not have been necessary for

Viceconte to have actually filed his own application, but no significant extra cost was involved in him so doing. Again, he was able to supply evidence for the Court's assistance which was not available from the other parties. In the end he was successful to the extent that it was found that his direction concerning the disbursement of the money should be given effect to.

Throughout the proceedings the Official Trustee adopted a stance which was found to be erroneous. This is not to say that the Official Trustee acted unreasonably or irresponsibly. It was simply wrong in the attitude it adopted and in my view the ordinary consequences of being unsuccessful should follow.

I publish with these reasons a minute of the various orders

which I make in these proceedings. Judgment will be entered
accordingly.

I certify that this and the preceding 2 pages are a true copy of the Reasons of the Honourable Mr. Justice Olney

Dated: 25 March 1992

Heard:	4 March 1992
Place:	Melbourne

Judqment : 25 March 1992

Counsel for Australia and New Zealand

Bankinq Group Limited:	Mr. K. Baker
Solicitors for Australia and New
Zealand Banking Group Limited:	Messrs. Dunhill Madden Butler
Counsel for The Official Trustee in
Bankruptcy:	Mr. J. Lenczner
Solicitor for The Official Trustee in
Bankruptcy:	Australian Government Solicitor
Counsel for Pasquale Viceconte:	Mr. B. Scheid
Solicitor for Pasquale Viceconte:	Messrs. Vann Fisher & Associates