Re Troy, M.

[1989] FCA 422

dL;C2?u4E:*!T No. 4a.a../ .... S? ......

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	) QLD P1653 of 1988
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF QUEENSLAND	)

RE: MALCOLM TROY

Debtor

EX PARTE:  JOHN McCOLL GEARY and
HELEN GEARY

Creditors

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	14 JUNE 1989
WHERE MADE:	BRISBANE
THE COURT:

1.   FINDS the act of bankruptcy alleged in the petition;

2.   FINDS the other facts necessary to be found to ground a sequestration order;

3.    MAKES a sequestration order in respect of M K ~ r o y , the judgment debtor;

4.   ORDERS that the costs of the petitioning creditors be taxed and paid in accordance with the

A c t .

... -.

NOTE :  Settlement and entry of orders is dealt wit
Rule 124 of the Bankruptcy Rules.

', '

t-. I I

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1 QLD P1653 of 1988
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF QUEENSLAND	)

RE:  HALCOLM TROY

Debtor

EX PARTE:	-	JOHN McCOLL GEARY and
HELEN GEARY

Creditors

PINCUS J. 14 JUNE 1989

EX TEMPORE REASONS FOR JUDGMENT

This is a matter in which a judgment was entered in the District Court against Mr Troy in circumstances which may seem to be rather unfortunate.

The circumstances were that he had received moneys under which is not very clear to me, he paid those moneys into the	a proposed agreement for the sale of an hotel, and for some reason	account of a company for which he claims to have been acting.
His counsel, Mr Howe, says that I should find that he was acting on behalf of that company, but I am not prepared to find that. The correspondence (exhibits 1, 2 and 3) does not mention the company, nor suggest that Mr Troy was acting as agent for anybody other than himself. In fact, the only piece of
evidence which points the other way is that the agreement which was embodied in the two documents both bearing the same date refers to the agent as being "Resort Projects". There is, however, nothing to suggest that the purchasers, when paying the money, as it submitted they did, to Mr Troy, regarded themselves as making payment to the company which has been mentioned.
The difficulty is, as I think Mr Howeps submission underlines, that although Mr Troy may have regarded himself as acting for the company, in fact, so far as the purchasers were concerned, he, in all respects, acted as if he were an agent and self-employed. No explanation has been given as to why exhibits l, 2 and 3 do not have the name of this company on them and I have come to the conclusion that there is no reason to disregard the judgment.
Mr Howe suggested that s.66(5) of the Auctioneers and Agents Act 1971 (Qld) might not apply, because the parties could contract otherwise; I am not prepared to hold that. It seems to me highly improbable that the Queensland Parliament intended
unfortunate one for Mr Troy, but he has been, it seems to me, s.66(5) to be able to be contracted out of. The result is an
caught in the coils of the statute. Also he, perhaps unwisely, did not make it clear (indeed, did not suggest to anyone) that he was really acting for a company. In fact, he quite candidly admits that he never mentioned any company to the persons who paid him the money. The result is that, in my opinion, there is no substantial reason to doubt the correctness of the judgment which has been entered, although it is a default judgment.
Mr Troy has given evidence that he has got nothing, so it is not clear what is the point of making him bankrupt, but it seems to me he has to go bankrupt.

The Court finds:

1.     the act of bankruptcy alleged in the petition;

2.    the other facts necessary to be found to ground a

sequestration order.

The Court makes a sequestration order in respect of Mr Troy, the judgment debtor, and orders that the costs of the petitioning creditors be taxed and paid in accordance with the Act.

I c-rtify that this and the two preceding pages sr.

a true copy of the reasons for judgment herain of

His Honour Hr Juatic. Pineus