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Re Skase; ex parte Donnelly

Re Skase; ex parte Donnelly

Case [1992] FCA 660 4 September 1992

Jurisdiction

Limitation Periods

Costs

Administration of Estate

Bankruptcy Law

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Re: CHRISTOPHER CHARLES SKASE
Ex parte: MAX CHRISTOPHER DONNELLY
No. Q B1253 of 1991
FED No. 660
Bankruptcy - Practice and Procedure - Costs
(1992) 37 FCR 509
(1992) 114 ALR 303

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Bankruptcy - application under s. 264B(1)(a) of Bankruptcy Act 1966 (Cth) for issue of warrants for arrest of bankrupt and his wife for non-compliance with s. 81(1) summons - respondents both outside jurisdiction - applicant conceded no power to execute warrants if issued - discussion of elements of s. 264B(1) - finding that court had power to issue - futile exercise to issue - application for warrants dismissed

Practice and Procedure - application for transfer of records and documents relating to bankrupt's estate to New South Wales Registry - no express power of transfer contained in Bankruptcy Act or Bankruptcy Rules - transfer order made pursuant to s. 30(1)(b) of the Bankruptcy Act and rule 113(1) of the Bankruptcy Rules.

Costs - no order as to costs in relation to application for warrant for bankrupt's arrest - detailed consideration of bankrupt's misconduct leading up to making of application and prior to hearing - successful bankrupt deprived of his costs even though trustee brought futile application

Bankruptcy Act 1966 (Cth) - ss. 30(1)(b), 32, 81, 264A and 264B

Bankruptcy Rules - rr. 113 and 115

Cummings v Lewis (unreported) (NG 668 of 1989, 29 May, 1992: Wilcox J

Gold Star Publications Ltd v Director of Public Prosecutions (1981) 1 WLR 732

Re Skase (1991) 104 ALR 229

HEARING

BRISBANE

#DATE 4:9:1992

Counsel for the trustee: S.G. Finch

Solicitors for the trustee: Allen Allen and Hemsley

Counsel for the bankrupt: A.J.H. Morris

Solicitors for the bankrupt: Kenny and Loel

ORDER

THE COURT ORDERS THAT:

1. The application for the issue of warrants for the arrest of

Mr and Mrs Skase is dismissed.

2. In relation to the application for the issue of a warrant

for the arrest of Mr Skase, there will be no order as to costs.

3. The Registrar in Bankruptcy for the Bankruptcy District of

the State of Queensland ("the Queensland Registrar") transmit to the Registrar in Bankruptcy for the Bankruptcy District of the State of New South Wales ("the New South Wales Registrar") the records and documents relating to the estate of Christopher Charles Skase No. QB 1253 of 1991 which are within the custody of the Queensland Registrar.

4. Upon the transmission of the records and documents referred

to in order 3, the administration of the estate of Christopher Charles Skase pursuant to the filing and acceptance of debtor's petition dated 13 June, 1991 and all proceedings connected therewith continue in all respects as if the said debtor's petition had been filed and accepted in the Bankruptcy District of the State of New South Wales.

5. Upon receipt of the said records and documents the New South

Wales Registrar take all such steps as may be…

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 Skase; ex parte Donnelly

Details

AGLC: Re Skase, C.C. Ex Parte Donnelly, M.C. [1992] FCA 660 ((1992) 37 FCR 509; (1992) 114 ALR 303)
Case: [1992] FCA 660
Decision Date: 04 SEPTEMBER 1992

CaseChat Overview and Summary

The case of Re Skase; ex parte Donnelly was heard in the Federal Court of Australia, where Donnelly, the Official Trustee in Bankruptcy, sought warrants for the arrest of Christopher Charles Skase and his wife for failing to comply with a summons issued under Section 81(1) of the Bankruptcy Act 1966 (Cth). The Skases were both outside the jurisdiction of the Federal Court, and Donnelly conceded that there was no power to execute the warrants if they were issued. The central legal issue was whether the court had the authority to issue the warrants despite the Skases being outside the jurisdiction, and whether doing so would be a futile exercise. The court held that while it had the power to issue the warrants under Section 264B(1)(a) of the Act, executing them would be a futile exercise given the Skases' location. Consequently, the application for warrants was dismissed. The court also ordered the transmission of records and documents relating to Skase's estate from the Queensland Registrar to the New South Wales Registrar, and directed that the administration of the estate continue as if the debtor's petition had been filed in New South Wales. The costs of the application for transfer were to be borne by the trustee in the administration of Skase's estate.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application for the issue of warrants for the arrest of

Mr and Mrs Skase is dismissed.

2. In relation to the application for the issue of a warrant

for the arrest of Mr Skase, there will be no order as to costs.

3. The Registrar in Bankruptcy for the Bankruptcy District of

the State of Queensland ("the Queensland Registrar") transmit to the Registrar in Bankruptcy for the Bankruptcy District of the State of New South Wales ("the New South Wales Registrar") the records and documents relating to the estate of Christopher Charles Skase No. QB 1253 of 1991 which are within the custody of the Queensland Registrar.

4. Upon the transmission of the records and documents referred

to in order 3, the administration of the estate of Christopher Charles Skase pursuant to the filing and acceptance of debtor's petition dated 13 June, 1991 and all proceedings connected therewith continue in all respects as if the said debtor's petition had been filed and accepted in the Bankruptcy District of the State of New South Wales.

5. Upon receipt of the said records and documents the New South

Wales Registrar take all such steps as may be necessary or appropriate to give effect to order 4 hereof, including, without limiting the generality of the foregoing, the assignment of such number and/or heading to be used in the entitlement of documents as may be convenient.

6. The costs of the application for transfer are the trustee's

costs in the administration of the estate of Christopher Charles Skase.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of

the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Re Skase, C.C. Ex Parte Donnelly, M.C. [1992] FCA 660 ((1992) 37 FCR 509; (1992) 114 ALR 303)

Most Recent Citation

Turner, James George v Official Trustee in Bankruptcy [1997] FCA 1505

Cases citing this decision · 24 of 24 shown

Mokhtar v Piscopo (No 2)
[2025] FCA 21 Para 10

…l rule in bankruptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cumming…
Kempsey Local Aboriginal Land Council v Donnelly
[2022] FedCFamC2G 149 Para 41

…ral rule in bankruptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummi…
Vlymen v Lever Solomon Ltd
[2021] FCCA 884 Para 2

…ptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event (Re Skase; ex parte Donnelly [1992] FCA 429 ; (1992) 37 FCR 509 per Drummond J at 522). In Re Skase, Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummings…
Metro Finance Pty Ltd v Awad
[2020] FCCA 1840 Para 3

…proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummings v…
Xiang v Ward
[2018] FCCA 893 Para 27

…(see for example Cummings v Lewis (Wilcox J, Federal Court of Australia, 29 May 1992, unreported) and Re Skase ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509).…
Young v Thomson (Trustee), in the matter of Young (Bankrupt) (No 4)
[2017] FCA 175 Para 13

…ral rule in bankruptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummi…
Fewin Pty Ltd v Prentice (No 2)
[2017] FCA 102 Para 7

…ral rule in bankruptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummi…
Fordyce v Wong
[2017] FCCA 87 Para 12

…(see for example Cummings v Lewis (Wilcox J, Federal Court of Australia, 29 May 1992, unreported) and Re Skase ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509)). The dispute between the parties now arises from their claimed respective conduct.…
Camm v Linke Nominees Pty Ltd (No 7)
[2016] FCA 96 Para 19

…e Court’s discretion to award costs under s 32 of the Bankruptcy Act 1966 (Cth) will, ordinarily, follow the event: see Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 522.…
Camm v Linke Nominees Pty Ltd (No 6)
[2016] FCA 95 Para 7

…ections confer on the Court a broad discretionary power which is unfettered but which must be exercised judicially: Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 522; DSE (Holdings) Pty Ltd v Intertan Inc (2004) 51 ACSR 555 at 557.…
Deputy Commissioner of Taxation v Debaugy
[2012] FMCA 451 Para 2

…unnag v Minister for Immigration & Anor (No. 2) [2008] FMCA 430 at para.49 per Lucev FM (and cases there cited). [28] Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 522 per Drummond J. [29] Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 at 339 per Davies J; [2001] NSWSC 60 at para.21 per Davies J;…
Young, in the matter of Macryannis (No 2)
[2012] FCA 175 Para 24

…cessful party and the weight to be attributed to this factor. His Honour’s conclusions were summarised by Drummond J in Re Skase; ex parte Donnelly (1992) 37 FCR 509 at 522. In each case the successful party was denied part of its costs. The fundamental principle is that, in relation to costs, the Court has an unfet…
Martinez v Morris
[2011] FMCA 478 Para 2

…In Re Skase; Ex Parte Donnelly (1992) 37 FCR 509 at 522, Drummond J treated as applicable certain propositions propounded by Wilcox J in Cummings v Lewis (unreported, Fed Ct, Wilcox J, NG668 of 1989, 29 May 1992): a)the Court has an unfettered discretion as to its costs order; b)but, because of the usual practice of…
Chamberlain v Viterra Ltd
[2010] FMCA 747 Para 26

…exercise of any discretion of the type usually exercised with respect to costs: see for example Re Skase; ex parte Donnelly [1992] FCA 429 ; (1992) 37 FCR 509. The provisions of the Act with respect to the fees of trustees are presently outdated. ……
Fleming v Dyason
[2010] FMCA 669 Para 1

…e Court is entitled to examine the conduct of the parties in the case and the circumstances out of which the costs arose: Re Skase; Ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522. Section 32 makes it clear that a litigant will only claim costs as a consequence of a discretionary order, and not as a matter…
McGrath & Anor as Liquidators of HIH Insurance Ltd
[2008] NSWSC 780

…nstruction Company Ltd [2004] HKCFI 592; [2005] HKEC 837 Re HIH Insurance Ltd [2004] NSWSC 454 Re Skase (1991) 32 FCR 212 Re Skase; Ex parte Donnelly (1992) 37 FCR 509 Stemcor (Australia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 PARTIES: Anthony Gregory McGrath and Christopher John Honey as liquidators of HIH Insu…
Alaeddin v CGU Workers Compensation (NSW) Ltd
[2007] FMCA 1833 Para 12

…o not allow for the exercise of any discretion of the type usually exercised with respect to costs: see for example Re Skase; ex parte Donnelly (1992) 37 FCR 509. The provisions of the Act with respect to the fees of trustees are presently outdated. In cases involving reviews there will rarely have been a creditor’s…
Ketch Nominees Pty Ltd v Hadden
[2007] FMCA 8 Para 1

…sible that an order for costs might be made against a Respondent Debtor where no sequestration order issues.[113] [112] Re Skase; ex parte Donnelly (1992) 37 FCR 509 at 522 per Drummond J ( “Skase” ). [113] Relying on Re Noye; ex parte Deputy Federal Commissioner of Taxation (1956) 18 ABC 77 at 78 per Clyne J, where…
Vaucluse Hospital Pty Ltd v Phillips
[2006] FMCA 44 Para 3

…ions do not allow for the exercise of any discretion of the type usually exercised with respect to costs: see for example Re Skase; ex parte Donnelly (1992) 37 FCR 509. The provisions of the Act with respect to the fees of trustees are presently outdated. In cases involving reviews there will rarely have been a cred…
Authentico Transnational Pty Ltd v Nagpal
[2004] NSWSC 12

…SLATION CITED: Bankruptcy Act 1966 (Cth) s 274B(1) Supreme Court Rules Part 19 r 2, Part 42 r 7, Part 43 r 1 CASES CITED: Re Skase; Ex parte Donnelly (1992) 114 ALR 303 Schnabel v Lui (2002) 56 NSWLR 119 PARTIES : Authentico Transnational Pty Ltd (P1) Anthony Milton Sims (P2) Scott Darren Pascoe (P3) Ajay Nagpal (D1)…
Principal Strategic Options Pty Ltd, in the matter of Coshott v Coshott
[2001] FCA 664 Para 19

…ral rule in bankruptcy proceedings, as in proceedings before the Court generally, is that costs should follow the event ( Re Skase; ex parte Donnelly (1992) 37 FCR 509 per Drummond J at 522). In Re Skase , Drummond J treated as applicable to bankruptcy proceedings certain propositions propounded by Wilcox J in Cummi…
Burlington Centre Supermarket Pty Ltd, in the matter of Karandonis v; Karandonis
[2000] FCA 1318 Para 5

…k beyond the actual conduct of proceedings and have regard to the circumstances under which the proceedings arise – see Re Skase; Ex parte Donnelly (1992) 37 FCR 509 and 522.…
AB v The Queen
[1999] HCA 46 Para 14

…; proceedings in Spain for the extradition of Christopher Skase in March 1994: see Re Skase (1991) 32 FCR 212 at 216-217; Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 509-511.…
Turner, James George v Official Trustee in Bankruptcy
[1997] FCA 1505

…(See also in respect of s 32: Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 522)…

View all 24 citing cases →

Cases cited in this decision · 2 of 2 shown

Hadgkiss v Aldin
[2006] FCA 1164

…ns who are not at the time in the jurisdiction and whether or not they are domiciled in Australia. See Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256, 260 and Re Trimbole; Ex parte Deputy Commissioner of Taxation (1984) 4 FCR 586. A debtor outside the jurisdiction can be effectively served with a s…
(1981) 1 WLR 732
(1981) 1 WLR 732

…Gold Star Publications Ltd v Director of Public Prosecutions (1981) 1 WLR 732…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
1 mention