Re McKeering, P.m. v Ex parte Stafford, R.B.
[1995] FCA 456
•27 Jun 1995
IN THE FEDERAL COURT OF AUSTRALIA )No QP 282 of 1995
GENERAL DIVISION )
BANKRUPTCY DISTRICT OF )
THE STATE OF QUEENSLAND )
RE:The estate of PAUL MURRAY McKEERING, deceased
Debtor
EX PARTE:ROSEMARY BOLTON STAFFORD, CARMEL MARY SPEEDY and AILEEN NORA O'GORMAN as executors of the estate of MARY KATHLEEN McKEERING deceased
Applicants
ANDREW JAMES RATTLE as legal personal representative of the estate of Paul Murray McKeering deceased
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 27 June, 1995
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
The application be dismissed.
The applicants pay the respondent's costs of and incidental to the application, to be taxed.
UPON the applicants giving the usual undertaking as to damages THE COURT FURTHER ORDERS THAT, until the determination of the petition or earlier order:
The respondent be restrained from disbursing any part of the proceeds of sale of the property the subject of the application, if the sale proceeds, other than the costs and expenses of the sale and
the amount due by the deceased estate to the secured creditors referred to in the material.
The proceeds of sale be held in the trust account of McCrea Jones with liberty to Messrs. McCrea Jones to transfer those proceeds to an interest bearing account with a bank upon condition that Messrs. McCrea Jones forthwith notify the solicitors for the petitioning creditors in writing of the details of any such account.
NOTE:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) No. QP 282 of 1995
GENERAL DIVISION )
BANKRUPTCY DISTRICT OF )
THE STATE OF QUEENSLAND )
RE:The estate of PAUL MURRAY McKEERING, deceased
Debtor
EX PARTE:ROSEMARY BOLTON STAFFORD, CARMEL MARY SPEEDY and AILEEN NORA O'GORMAN as executors of the estate of MARY KATHLEEN McKEERING deceased
Applicants
ANDREW JAMES RATTLE as legal personal representative of the estate of Paul Murray McKeering deceased
Respondent
CORAM: Drummond J
PLACE: Brisbane
DATE: 27 June, 1995
REASONS FOR JUDGMENT
This is an application to appoint a registered trustee to take charge of a sale about to take place in a few minutes time by way of auction. The registered trustee is the person intended by the petitioning creditors to be appointed administrator of an insolvent estate in the event that an administration order in bankruptcy is made on a petition that is pending before the Court. The petition refers to non-payment of a very substantial judgment debt obtained by the petitioning creditors against the estate of the deceased debtor.
The purpose of the application, as I think I have indicated, is for this registered trustee to be put in charge of the effective conduct of the sale of the deceased debtor's property. It is not the intention of the creditors to stop the auction proceeding.
There are a number of what I would regard as unsatisfactory features concerning the way the auction of the judgment debtor's property has been arranged. The property is a beach house at Peregian on the Sunshine Coast. It is a four-bedroom house that appears to be in sound condition. The auction has only been advertised for some two weeks, in the circumstances, an unusually short period - something confirmed by a real estate agent relied on by the judgment creditors. As the real estate agent relied on by the judgment creditors also says, it has been very narrowly advertised, advertising being confined to the North Coast area and there being, in particular, no advertising conducted which might bring the property to the attention of possible purchasers in Brisbane. An odd time has been fixed for the sale: 5 p.m. on a Tuesday. The reserve, initially fixed at $350,000, a figure which, as I read the material, is one with which the judgment creditors do not cavil, was reduced, apparently on the direction of the solicitor acting for the executor of the deceased judgment debtor, to $300,000. This was done, it is common ground, after that solicitor learned of the filing of the judgment creditors' petition. The solicitor, moreover, is personally interested in the sale proceeding to recoup what are no doubt substantial fees due to him in respect of his role on behalf of the deceased debtor's estate in the litigation that resulted in the judgment I have referred to. The estate, and again this is common ground, appears to be hopelessly insolvent so that the executor who presently has charge of the sale has no personal pecuniary interest in achieving a substantial return from the sale, even though he is the deceased debtor's sole beneficiary.
It is not, however, suggested that there are any other creditors of the estate apart from the judgment creditors and the solicitor and a couple of creditors who are owed what is in the totality quite small amounts. If application had been made to stop the sale, then, given there are other creditors on the material before me, albeit small ones, I would have been very much inclined not to have allowed the sale to proceed because of the factors I have summarised; however, it is not clear to me just how the trustee proposes to proceed if he were to be put in charge of the sale. There is a valuation put before me on behalf of the executor of the judgment debtor prepared by a registered valuer very recently which values the property at $300,000. There is nothing in this valuation that appears unorthodox. There is no reason, on the face of the valuation, to think that it is anything other than a proper valuation exercise. There is evidence that there are potential purchasers prepared to pay in excess of this valuation. There is nothing coming from the petitioning creditors to suggest that the value the registered valuer retained by the executor has placed on the property is inadequate, let alone grossly inadequate. It is largely for that reason that I remain in a state of uncertainty as to just how the trustee would proceed if he were to be put in charge of the sale. I add that that valuation I have referred to provides an explanation for the actions of the solicitor against which a question mark is raised by certain of the material relied on by the petitioning creditors in reducing the reserve in the way I have mentioned.
In the limited time available to me to consider the matter and peruse the material, I have therefore reached the conclusion, which I announced at the outset, that, notwithstanding the proffering of the usual undertakings as to damages on behalf of the judgment creditors, I will not interfere with this sale. The application will be dismissed.
I certify that this and the preceding
three pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.
Associate:
Date: 27 June, 1995
0
0
0