Reidy v Victorian Securities Corporation Limited, in the matter of the Buggy (Bankrupt)
[2011] FCA 413
•21 April 2011
FEDERAL COURT OF AUSTRALIA
Reidy v Victorian Securities Corporation Limited, in the matter of Buggy (Bankrupt) [2011] FCA 413
Citation: Reidy v Victorian Securities Corporation Limited, in the matter of the Buggy (Bankrupt) [2011] FCA 413 Parties: GEOFFREY PHILIP REIDY, THE TRUSTEE OF THE PROPERTY OF MICHAEL FRANCIS BUGGY, A BANKRUPT v VICTORIAN SECURITIES CORPORATION LIMITED ACN 004 496 208, FRANK REINISCH, ADAM REINISCH and CAROLYN BARBARA REINISCH File number: NSD 506 of 2011 Judge: BENNETT J Date of judgment: 21 April 2011 Legislation: Bankruptcy Act 1966 (Cth) ss 33(1)(c), 60(2), 60(3) Date of hearing: 21 April 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr J Baird Solicitor for the Applicant: Polczynski Lawyers Counsel for the Respondents: The respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 506 of 2011
IN THE MATTER OF THE BANKRUPT ESTATE OF MICHAEL FRANCIS BUGGY
BETWEEN: GEOFFREY PHILIP REIDY, THE TRUSTEE OF THE PROPERTY OF MICHAEL FRANCIS BUGGY,
A BANKRUPT
ApplicantAND: VICTORIAN SECURITIES CORPORATION LIMITED
ACN 004 496 208
First RespondentFRANK REINISCH
Second RespondentADAM REINISCH
Third RespondentCAROLYN BARBARA REINISCH
Fourth Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
21 APRIL 2011
WHERE MADE:
SYDNEY
THE COURT:
1.Orders that pursuant to s 33(1)(c) of the Bankruptcy Act 1966 (Cth) (the Act), the time within which the Applicant is required to make an election pursuant to s 60(3) of the Act in relation to the notice given by the First Respondent on 29 March 2011 be extended until 4 p.m. on 29 April 2011.
2.Orders that pursuant to s 33(1)(c) of the Act, the time within which the Applicant is required to make an election pursuant to s 60(3) of the Act in relation to the notice given by the Second, Third and Fourth Respondents on 25 March 2011 be extended until 4 p.m. on 29 April 2011.
3.Directs that the time for service of the Application be abridged to 5 p.m. on 21 April 2011, and grants leave for service by telephone and fax upon the respective solicitors for the Respondents.
4.Orders that the Application stand over to 9:30 a.m. on 29 April 2011 before the Duty Judge.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 506 of 2011
IN THE MATTER OF THE BANKRUPT ESTATE OF MICHAEL FRANCIS BUGGY
BETWEEN: GEOFFREY PHILIP REIDY, THE TRUSTEE OF THE PROPERTY OF MICHAEL FRANCIS BUGGY,
A BANKRUPT
ApplicantAND: VICTORIAN SECURITIES CORPORATION LIMITED
ACN 004 496 208
First RespondentFRANK REINISCH
Second RespondentADAM REINISCH
Third RespondentCAROLYN BARBARA REINISCH
Fourth Respondent
JUDGE:
BENNETT J
DATE:
21 APRIL 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is the Trustee in Bankruptcy (the Trustee) of the property of Michael Francis Buggy, against whom a sequestration order was made on 25 March 2011. As at that date there were two legal proceedings in which Mr Buggy was a party. The first are proceedings before the ACT Supreme Court, which involve a claim of approximately $5 million (the ACT Proceedings). The ACT Proceedings are part-heard, and have been stood over for a further five days of hearing commencing on 4 June 2012. The second is an appeal in this Court, which has been set down for hearing on 13 May 2011 (the Appeal Proceedings).
Section 60 of the Bankruptcy Act 1966 (Cth) (the Act) relevantly provides that:
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes an election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
On 25 March 2011 the solicitors for the respondents in the Appeal Proceedings (the second to fourth respondents in these proceedings) served such a notice on the Trustee. On 29 March 2011 the solicitors for one of the defendants in the ACT Proceedings (the first respondent in these proceedings) served such a notice on the Trustee. There may be a question as to whether these notices comply with s 60(3) of the Act.
The 28 day period for the notice in the ACT Proceedings expires on 26 April 2011, while the 28 day notice period for the Appeal Proceedings expires on 22 April 2011. However, in both cases this would be extended to 27 April 2011 by reason of the public holiday period. The Trustee has not made an election.
The Trustee has written to the solicitors for each of the respondents, informing them of the date of expiry of the 28 day period and seeking advice as to whether the respondents consent in each case to the extension of time being granted. In the ACT Proceedings a response was received from the solicitors seeking further information. In the appeal proceedings the advice was given that the solicitor handling the matter was on leave and not returning to the office until Wednesday, 27 April 2011.
The Trustee applies for an extension of time until 29 April 2011 in which to make an election. By s 33(1)(c) of the Act, the Court has power to extend that period of time. The Trustee has given evidence by way of affidavit of the steps that have been taken to date in assisting him to make a decision in relation to the ACT Proceedings and the Appeal Proceedings. It is apparent that the Trustee has been making ongoing inquiries since his appointment. In relation to the ACT Proceedings, it would seem that the Trustee is considering whether or not to conduct an examination pursuant to s 81 of the Act.
I am satisfied that the Trustee has been taking steps to enable him to make the requisite election. I am also satisfied that, in the case of the ACT Proceedings, no substantial prejudice will be suffered by the first respondent if a short extension is granted as these proceedings are not set down for further hearing until June 2012. There is, however, a degree of urgency in relation to the Appeal Proceedings. I assume that the Trustee will take all reasonable steps to try to make an election in the Appeal Proceedings by 29 April 2011, which is the date on which this matter comes next before the Court.
I am satisfied that it is appropriate to grant the extension of time that has been sought in each case.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 28 April 2011
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