Re Nixon

Case [2015] FCA 976 3 September 2015

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FEDERAL COURT OF AUSTRALIA
Nixon, in the matter of Nixon [2015] FCA 976

Citation: Nixon, in the matter of Nixon [2015] FCA 976

Parties: BRENDAN JOSEPH NIXON, JOANNE EMILY DUNN, LACHLAN STUART MCINTOSH, JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD, PAUL ANTHONY ALLEN AND IAN CHARLES FRANCIS

File number: QUD 699 of 2015

Judge: EDELMAN J

Date of judgment: 3 September 2015

Catchwords:
BANKRUPTCY AND INSOLVENCY – requirement of notice of an application to remove a trustee or liquidator – circumstances in which the application should be heard in the absence of notice

CORPORATIONS – power of the court to appoint a new co-liquidator under s 473(7) of the Corporations Act 2001 following resignation of a co-liquidator – power of the court to appoint a new co-trustee of a bankrupt estate under s 180 of the Bankruptcy Act 1966

Legislation:
Corporations Act 2001 (Cth) ss 473(1), 473(7), 503, 530
Corporations Amendment (Insolvency) Act 2007 (Cth)
Bankruptcy Act 1966 (Cth) ss 30, 160, 180
Federal Court Rules2011 (Cth) r 1.34
Federal Court (Bankruptcy) Rules 2005 (Cth) rr 1.03(2)(a), 8.02(2)(b), 8.02(2)(c)

Federal Court (Corporations) Rules 2000 (Cth) rr 1.3(2), 2.7(1), 7(1)

Cases cited: Condon v Watson [2009] FCA 11; (2009) 174 FCR 314
Coshott v Burke [2013] FCA 155
Emerton Pty Ltd v Referral Marketing Services Pty Ltd & Ors [2009] NSWSC 738
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
In in the matter of Fluid Form Movement Pty Ltd and Other [2013] NSWSC 2007
Official Trustee in Bankruptcy [2009] FCA 850
Re McGrath and Another (as liquidators of HIH Insurance Ltd (in liquidation)) [2005] NSWSC 506; (2005) 54 ACSR 55
Re Shanahan [2014] FCA 1080
Van Der Velde v Estate of Sweeney [2013] FCA 593

Date of hearing: 3 September 2015

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 40

Solicitor for the Applicant: Mr W P Jiear, Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 699 of 2015

BETWEEN:
BRENDAN JOSEPH NIXON, JOANNE EMILY DUNN, LACHLAN STUART MCINTOSH, JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD, PAUL ANTHONY ALLEN AND IAN CHARLES FRANCIS
Applicant

JUDGE:

EDELMAN J

DATE OF ORDER:

3 SEPTEMBER 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The matter be adjourned to 23 September 2015 at not before 11 am.
2.No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 699 of 2015

BETWEEN:
BRENDAN JOSEPH NIXON, JOANNE EMILY DUNN, LACHLAN STUART MCINTOSH, JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD, PAUL ANTHONY ALLEN AND IAN CHARLES FRANCIS
Applicant

JUDGE:

EDELMAN J

DATE:

3 SEPTEMBER 2015

PLACE:

BRISBANE

REASONS FOR JUDGMENT
Introduction

The applicants in this proceeding seek orders to replace Mr Nixon as a trustee and liquidator of various estates. Broadly, the applicants seek three orders:
(1)orders dispensing with any requirement to provide notice of Mr Nixon’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Nixon

Details

AGLC: Re Nixon [2015] FCA 976
Case: [2015] FCA 976
Decision Date: 3 September 2015

CaseChat Overview and Summary

In the matter of Re Nixon, the Federal Court was tasked with addressing an application to remove a liquidator and appoint new ones in relation to certain bankruptcy estates. The applicants sought the removal of Mr Nixon, who was the liquidator of the estates outlined in Schedules 8 and 9, and the appointment of Ms Dunn and Ms Trenfield as the new liquidators, pending their consent to act. This application arose from concerns regarding Mr Nixon's conduct and capability to efficiently administer the estates.

The court needed to determine whether proper notice was given to Mr Nixon of the application and whether the application should proceed in his absence. Additionally, the court had to consider its authority to appoint new liquidators under the Corporations Act 2001 and the Bankruptcy Act 1966, specifically whether it could appoint new co-liquidators following the resignation of the existing co-liquidator. The court also had to examine the procedures for resignation and replacement of the liquidator, as well as the potential consequences of such actions.

The court found that there were deficiencies in the applicants' submissions and evidence regarding the notice to Mr Nixon. Consequently, the application was to be adjourned to allow the applicants to address these issues. The court expressed a preliminary view that it was appropriate to remove Mr Nixon as liquidator for the sake of efficient estate administration and to appoint Ms Dunn and Ms Trenfield as new liquidators, subject to their consent. The court's reasoning emphasised the need for proper notice and the importance of efficient estate management.

The final orders included adjourning the matter to a specified date to allow the applicants to address the notice issues and to file the necessary consents. No order was made regarding costs.

Orders

Orders of the court

1. The matter be adjourned to 23 September 2015 at not before 11 am.

2. No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While Mr Nixon could have been replaced as the liquidator of these estates out of court, my preliminary view (subject to the issues raised above in the section of these reasons concerning notice) is that it is appropriate to maintain the efficient administration of the estates by removing Mr Nixon as liquidator in relation to the estates in Schedules 8 and 9 and appointing Ms Dunn and Ms Trenfield after Ms Dunn files a consent to act as liquidator in relation to the estates in Schedule 8 and Ms Trenfield files a consent to act as a liquidator in relation to the estates in Schedule 9.CONCLUSION For the reasons I have indicated in relation to notice, the application will be adjourned to a date which I will now fix after hearing from the applicants. My reasons concerning the processes of resignation and replacement of Mr Nixon are preliminary only but are designed to assist the parties, and to reduce costs, in circumstances in which substantial submissions and evidence has been filed and where I have formed the preliminary view that there are deficiencies in those submissions and that evidence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Re Nixon [2015] FCA 976

Most Recent Citation

Nixon, in the matter of Nixon (No 2) [2015] FCA 1047

Cases citing this decision · 14 of 14 shown

Sellers, in the matter of Sellers
[2023] FCA 370 Para 17

…e petitioning creditors be notified of the application so they could be heard if they wished. His Honour noted that in Nixon, In the matter of Nixon, [2015] FCA 976 at [19]-[25] and Nixon, In the matter of Nixon, [2015] FCA 1047, Edelman J took the same view.…
Nixon, in the matter of Nixon
[2022] FCA 211 Para 4

…es of Counsel has submitted, that is wholly undesirable. Such was emphasised by Edelman J (as his Honour then was) in Nixon, in the matter of Nixon [2015] FCA 976, where his Honour adopted the observations of Brereton J in Emerton Pty Ltd v Referral Marketing Services Pty Ltd [2009] NSWSC 738. Edelman J said at […
Boss Lawyers Pty Ltd v Winn
[2021] FedCFamC2G 44 Para 33

…With that said, there is another approach taken in the authorities. In Nixon, in the matter of Nixon [2015] FCA 976 Edelman J considered at [10] that r.1.03(2)(a) of the Federal Court (Bankruptcy) Rules 2005 (Cth) allowed him recourse to r.1.34 of the Federal Court Rules 2011 (Cth), which stated “the Court may di…
Scott, in the matter of Scott and Pascoe
[2021] FCA 639 Para 5

…estate: Condon at [36] (Lindgren J). Such an approach is uncontroversial and has been endorsed by this Court: see e.g. Nixon, in the matter of Nixon [2015] FCA 976 ( Nixon ) at [22] (Edelman J (as his Honour then was)); Nixon ( Trustee) [2018] FCA 720 at [8] (Collier J).…
de Vries, in the matter of the bankrupt estate of Cunningham
[2021] FCA 188 Para 9

…dition of its acceptance of the resignation of the current trustee: Coshott v Burke [2013] FCA 155 (Buchanan J) at [9], Nixon, in the matter of Nixon [2015] FCA 976 (Edelman J) at [24], Gollant, in the matter of ACN 065 229 831 Pty Ltd [2017] FCA 1158 (Davies J) at [18].…
In the matter of HIH Insurance Limited (in liquidation);; In the matter of HIH Underwriting and Agency Services Limited (in liquidation);; In the matter of CIC Insurance Limited;; In the matter of FAI General..
[2020] NSWSC 803 Para 15

…ceased to hold office. It was only in this event that the Court had power under section 473(7) to fill the vacancy. In Nixon, In the matter of Nixon [2015] FCA 976, Edelman J followed Condon v Watson where the applicants did not submit that the reasoning of Lindgren J was plainly wrong and, in the absence such a…
Allen, in the matter of Allen
[2020] FCA 376 Para 3

…ard if the wished. Accordingly I adjourned the application to 13 March 2020 so notification could occur. I note that in Nixon, in the matter of Nixon [2015] FCA 976 at [19]-[25] and Nixon, in the matter of Nixon (No 2) [2015] FCA 1047 (together, Nixon ), coincidentally a case which involved the applicants in the…
Nixon (Trustee)
[2018] FCA 720 Para 8

…rved by this narrower construction. (Emphasis added.) The approach taken by Lindgren J was endorsed by Edelman J in Nixon, in the matter of Nixon [2015] FCA 976 at [22].…
Brake v WFH Enterprises Pty Ltd (Administrators Appointed), in the matter of Brake
[2017] FCA 1597 Para 4

…es the Court the power to accept the resignation of a trustee subject to such terms and conditions as it thinks fit. In Nixon, in the matter of Nixon [2015] FCA 976 at [24], Edelman J followed the approach of Buchanan J in Coshott v Burke [2013] FCA 155 and decided at [25] that the Court could accept the resignat…
Gollant, in the matter of ACN 065 229 831 Pty Ltd
[2017] FCA 1158 Para 18

…ndition of the resignation of the incumbent trustee and the Court would not be obliged to leave the matter in the hands of the creditors. In Re Nixon [2015] FCA 976 at [24], Edelman J referred to Coshott v Burke and was prepared to make an order under s 180 and not require the applicants to give notice to all the…
Re Kukulovski, Arnautovic & Crisp
[2015] NSWSC 2040 Para 6

…reference to the other liquidator, after his or her retirement or resignation: Condon v Watson [2009] FCA 11; (2009) 69 ACSR 350 at [75]; Re Nixon [2015] FCA 976 at [28]ff. So far as the relevant appointments are court appointments, and it is relevant for the Court to know of Mr Kukulovski's resignation from tho…
HIH Underwriting Holdings Pty Ltd v FAI (CTP) Pty Ltd
[2015] NSWSC 2137 Para 8

…least one, it could not be said that there was a vacancy in the office of a liquidator. 3. [2009] FCA 11; (2009) 174 FCR 314; (2009) 69 ACSR 350. 4. [2015] FCA 976.…
Nixon, in the matter of Nixon (No 2)
[2015] FCA 1047 Para 1

…Mr Jiear on behalf of the applicants, I adjourned this application setting out several concerns with the orders sought: Nixon, in the matter of Nixon [2015] FCA 976. The applicants say that they have addressed those concerns. After reading the material provided yesterday by the applicants, including their revised…
Australian Securities and Investments Commission v Macks (No 5)
[2021] SASC 12

…2020] VSCA 280; Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) (2010) 268 ALR 303; Re Nixon [2015] FCA 976; Re ACN 156 335 781 Pty Ltd [2017] FCA 815; Re Ballistic Hydraulic Hose and Fittings Pty Ltd [2017] FCA 1101; Re McGrath (2005) 54 ACSR 55; Oshlack v Richmond River Co…

View all 14 citing cases →

Cases cited in this decision · 9 of 9 shown

Shanahan, in the matter of Shanahan
[2014] FCA 1080 Para 15

…agreement by the applicants that they will not charge professional fees to familiarise themselves with the prior conduct of the estates: Re Shanahan [2014] FCA 1080 [8] (Rangiah J). Mr Jiear properly accepted that there was this deficiency but he submitted that orders could be made, imposing a condition restricti…
In the matter of Fluid Form Movement Pty Limited and other companies
[2013] NSWSC 2007 Para 33

…appear to apply whether Mr Nixon’s departure arises from his resignation or from removal. In in the matter of Fluid Form Movement Pty Ltd and Other [2013] NSWSC 2007 [5], Brereton J stated that “[t]he wish of a liquidator to resign for reasonable cause in order to enable a replacement liquidator to be appointed is,…
Van der Velde v Estate of Sweeney
[2013] FCA 593 Para 16

…there has been no public notification of today’s hearing which was initially listed only for case management: see Van Der Velde v Estate of Sweeney [2013] FCA 593 [4] (Logan J).…
Coshott v Burke
[2013] FCA 155 Para 24

…In Coshott v Burke [2013] FCA 155 [9], Buchanan J said, obiter, and in the context of a proposed resignation of a single trustee that he did “not doubt that the court has power to appoint another trustee under s 180 of the Bankruptcy Act as a condition of [the] resignation”. This reasoning would also apply to the…
Official Trustee in Bankruptcy
[2009] FCA 850 Para 34

…rd that there was no submission made concerning any power under s 30 of the Bankruptcy Act or any inherent power : see Official Trustee in Bankruptcy [2009] FCA 850 [7]-[9] (Emmett J). The CVL Estates…
Emerton Pty Ltd v Referral Marketing Services Pty Ltd
[2009] NSWSC 738 Para 38

…In Emerton Pty Ltd v Referral Marketing Services Pty Ltd & Ors [2009] NSWSC 738 [19], Brereton J said that if “a liquidator wishes to resign and can do so out of court, but instead approaches the Court as in the present case, in order to avoid a gap in the administration, it is in the interests of the administratio…
Condon v Watson
[2009] FCA 11 Para 11

…Similar circumstances to this case arose in Condon v Watson [2009] FCA 11; (2009) 174 FCR 314. In that case, Mr Condon, “in substance”, employed Mr Watson. They were jointly trustees in bankruptcy of 33 estates, liquidators of nine companies the subject of court orders for winding up, and liquidators of eight co…
Farah Constructions Pty Ltd v Say-Dee Pty Ltd
[2007] HCA 22 Para 24

…e upon the resignation of one of two joint trustees. It is appropriate that I follow this approach: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151-152 [135] (the Court).…
Re McGrath
[2005] NSWSC 506 Para 30

…In Re McGrath and Another (as liquidators of HIH Insurance Ltd (in liquidation)) [2005] NSWSC 506; (2005) 54 ACSR 55 at 57 [9], Barrett J held that: when s 473(7) refers to a “vacancy in the office of a liquidator appointed by the court” – with a “liquidator” being in the singular – it must comprehend the case wher…

Legislation cited in this decision · 6

Corporations Act 2001 (Cth)
473(1), 473(7), 503, 530 5 mentions (from Para 28)
Bankruptcy Act 1966 (Cth)
160, 180, 30 4 mentions (from Para 21)
Federal Court (Bankruptcy) Rules 2005 (Cth)
1.03(2)(a), 8.02(2)(b), 8.02(2)(c) 4 mentions (from Para 6)
Federal Court (Corporations) Rules 2000 (Cth)
1.3(2), 2.7(1), 7(1) 4 mentions (from Para 7)
Federal Court Rules 2011 (Cth)
1.34 2 mentions (from Para 10)
Corporations Amendment (Insolvency) Act 2007 (Cth)
1 mention (from Para 31)

Citation:	Nixon, in the matter of Nixon [2015] FCA 976
Parties:	BRENDAN JOSEPH NIXON, JOANNE EMILY DUNN, LACHLAN STUART MCINTOSH, JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD, PAUL ANTHONY ALLEN AND IAN CHARLES FRANCIS
File number:	QUD 699 of 2015
Judge:	EDELMAN J
Date of judgment:	3 September 2015
Catchwords:	BANKRUPTCY AND INSOLVENCY – requirement of notice of an application to remove a trustee or liquidator – circumstances in which the application should be heard in the absence of notice CORPORATIONS – power of the court to appoint a new co-liquidator under s 473(7) of the Corporations Act 2001 following resignation of a co-liquidator – power of the court to appoint a new co-trustee of a bankrupt estate under s 180 of the Bankruptcy Act 1966
Legislation:	Corporations Act 2001 (Cth) ss 473(1), 473(7), 503, 530 Corporations Amendment (Insolvency) Act 2007 (Cth) Bankruptcy Act 1966 (Cth) ss 30, 160, 180 Federal Court Rules2011 (Cth) r 1.34 Federal Court (Bankruptcy) Rules 2005 (Cth) rr 1.03(2)(a), 8.02(2)(b), 8.02(2)(c) Federal Court (Corporations) Rules 2000 (Cth) rr 1.3(2), 2.7(1), 7(1)
Cases cited:	Condon v Watson [2009] FCA 11; (2009) 174 FCR 314 Coshott v Burke [2013] FCA 155 Emerton Pty Ltd v Referral Marketing Services Pty Ltd & Ors [2009] NSWSC 738 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 In in the matter of Fluid Form Movement Pty Ltd and Other [2013] NSWSC 2007 Official Trustee in Bankruptcy [2009] FCA 850 Re McGrath and Another (as liquidators of HIH Insurance Ltd (in liquidation)) [2005] NSWSC 506; (2005) 54 ACSR 55 Re Shanahan [2014] FCA 1080 Van Der Velde v Estate of Sweeney [2013] FCA 593
Date of hearing:	3 September 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	40
Solicitor for the Applicant:	Mr W P Jiear, Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 699 of 2015

JUDGE:	EDELMAN J
DATE OF ORDER:	3 SEPTEMBER 2015
WHERE MADE:	BRISBANE

JUDGE:	EDELMAN J
DATE:	3 SEPTEMBER 2015
PLACE:	BRISBANE