Re Swinton, G.P. v Ex parte Sistrom, D.W

[1989] FCA 252

IN THE FEDERAL COURT OF AUSTRALIA	) )
GENERAL DIVISION	)

No. W 5 of 1989X

BANKRUPTCY DISTRICT OF THE STATE	1
OF NEW SOUTH WALES AND THE	1
AUSTRALIAN CAPITAL TERRITORY	)

Re: GRAEME PATRICK SWINTON

Debtor

Ex parte: DAVID WILLIAM SISTROM

Trustee

MINUTE OF ORDER

JUDGE MAKING ORDER	: Neaves J.
DATE OF ORDER	: 26 May 1989
WHERE MADE	: Canberra

THE COURT ORDERS THAT the deed of assignment executed by Graeme

Patrick Swinton and dated 10 January 1989 is void.

/

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

3  1 MAY \989

. .-

IF1 TI-E THEERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
) No. W 5 of 1989X
BANKRUPTCY DISTRICT OF THE STATE	)
OF NEW SOUTH WALES AND THE	)
AUSTRALIAN CAPITAL TERRITORY	1

Re: - GRAEME PATRICK SWINTON

Debtor

Ex parte: -. DAVID WILLIAM SISTROM

Trustee

m: Neaves J.

DATE: 26 May 1989

M TEMPORE JUDGMENT

On 10 January 1989 Graeme Patrick Swinton ("the

debtor") signed an authority under 5.188 of the Bankruptcy Act 1966 (Cth) ("the Act") authorizing David William Sistrom, a registered trustee, to call a meeting of his creditors and to take over the control of his property. Mr Sistrom, on the same

day, consented, in writing, to exercise the powers conferred by	the authority. The signature of the debtor to the authority
and the signature of the trustee were each attested by a witness as required by s.l88(2)(b). A copy of the authority with the consent endorsed thereon was filed in the office of the Registrar in Bankruptcy on 11 January 1989 (see s.188(4)).
The trustee proceeded to call a meeting of the creditors of the debtor, that meeting being held on 25 January 1989. At that meeting a resolution was passed requiring the debtor to enter Into a deed of assignment pursuant to Part X of the Act. On the same day, a deed of assignment was executed by the debtor assiqnlng all his divisible property to the trustee upon trust to deal wlth the same in accordance with Part X of the Act for the benefit of the creditors of the debtor.
The trustee, by application dated 4 May 1989, has applied to the Court for an order declaring that the deed of assignment is void and for such further or other order as the Court deems meet.
The evidence establishes that the meeting of creditors held on 25 January 1989 was attended by three persons only. One was a Mr William Balfour Rangott, a representative of the trustee. The second was a Mr Gregory William Morse. The thlrd was the debtor.
The statement of affairs of the debtor, which was verified by affidavit sworn on 10 January 1989, disclosed flve
unsecured creditors wlth debts totalling $33,540. Two of the creditors so disclosed were Esanda Finance Limited and Mrs
Jeanette Swinton, the debtor's wife. Mr Morse attended the meeting as a representative of Esanda Finance Limlted and held a proxy from that company. Mrs Swinton did not attend the meetlng but had appointed Mr Rangott as her proxy.
Section 202(1) of the Act provldes that, at a meetlng under Div'ision 2 of Part X, two creditors, being creditors entitled to vote at the meeting, present personally, by attorney or by proxy, constitute a quorum. Section 198(7) provldes that the spouse of a debtor 1s not entitled to vote at a meeting under that Division.
It is clear, on the evidence, that there was no quorum at the meeting held on 25 January 1989. The resolution
requiring the debtor to enter into a deed of assignment
pursuant to Part X of the Act was, therefore, not validly
passed and was not effective. It follows that the deed of assignment was not entered into in accordance wlth Part X. The deed is, therefore, void.
The Court declares that the deed of assignment executed by the debtor and dated 10 January 1989 is void.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

Assoclate

Dated: 26 May 1989

Counsel for the trustee	: Mr I. J. Nicol
Solicitors for the trustee	: Blake Dawson Waldron

There was no appearance for the debtor.

Date of hearing : 26 May 1989