Rondo Building Services Pty Ltd v Starkey - [2005] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RONDO BUILDING SERVICES PTD LTD v STARKEY

[2005] FMCA 275

BANKRUPTCY – Removal of a trustee – conduct of meeting of creditors under Part IV.

Federal Magistrates Act 1999, s.64(4)
Bankruptcy Act 1966, ss.30, 64ZA, 153A(3), 156A(4)(b), 178, Part IV

Re Dingle; Westpac Banking Corporation v Worrell and Anor (1993) 47 FLR 478
Pascoe v Prentice [2003] FMCA 198
Re Ly; Ex parte Dixon v Ly (1995) 62 FLR 432
Re Wong; Ex parte Wong v Donnelly (1995) 63 FLC 426
Re Lamb; Ex parte Reg in Bankruptcy (1984) 1 FLR 391
Re Challen (a bankrupt); Ex parte Brown v Bendeich (unreported, FCA, Beaumont J, 23 April 1996)
Re Partridge (unreported, FCA, Lockhart J, 22 September 1982)
Re Hetherington (unreported, FCA, Sweeney J, 14 December 1982)
Deputy Commissioner of Taxation v Niemann (1982) 69 FLR 79
Commonwealth of Australia v Irving (1996) 65 FCR 291
Re Chevron Furnishers Pty Ltd (in liq); Amalgamated Industries Pty Ltd v Harris (1993) 12 ACSR 565
Re Dawes (1934) 7 ABC 190
Spiteri v Lindholm [2003] VSC 42
Ogilvie v Adams [1981] VR 1041

Applicant:

RONDO BUILDING SERVICES PTY LTD (ACN 000 289 207)

Respondent:

GRAHAM LINDSAY STARKEY AS TRUSTEE OF THE ESTATE OF JOHN DANCE

File Number:

BRG 10 of 2004

Judgment of:

Rimmer FM

Hearing date:

11 May 2004

Delivered at:

Brisbane

Delivered on:

10 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

James Conomos Lawyers

Counsel for the Respondent:

Mr McSweeney

Solicitors for the Respondent:

MacGilverays

ORDERS

That the respondent be removed as the trustee of the estate of Peter John Dance and that Mr Nick Combis be appointed as trustee in his place.
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 10 of 2004

RONDO BUILDING SERVICES PTY LTD (ACN 000 289 207)

Applicant

And

GRAHAM LINDSAY STARKEY AS TRUSTEE OF THE ESTATE OF JOHN DANCE

Respondent

REASONS FOR JUDGMENT

Application

This is an application by a creditor of the bankrupt estate of Peter John Dance, Rondo Building Services Pty Ltd (ACN000 289 207) seeking a number of declarations against the trustee of the bankrupt estate, Graham Lindsay Starkey, as follows:
·That the trustee wrongly admitted a number of proofs of debt as outlined in the application;
·Further on in the alternative, a declaration that the meeting of creditors held on 20 November 2003 was not conducted in accordance with Division 5 of Part IV of the Act;
·A declaration that the resolution that the trustee be removed as the trustee of the estate of Peter John Dance and that Nick Combis be appointed to be the trustee in his place;
·Further on in the alternative, an order that the respondent be removed as the trustee of the estate of Peter John Dance and that Nick Combis be appointed as trustee in his place;
·An order that the respondent pay the costs of the applicant of this application…

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.

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Details

Case: [2005] FMCA 275
Decision Date: 10 March 2005

CaseChat Overview and Summary

The case before the court involved a dispute over the trusteeship of the estate of Peter John Dance, with Rondo Building Services Pty Ltd bringing proceedings against Starkey. The dispute centred around the validity of the respondent's position as trustee and the appropriateness of appointing an alternative trustee. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to address was whether the respondent, Starkey, was appropriately appointed as the trustee of the estate of Peter John Dance and whether there were valid grounds for removing the respondent and appointing an alternative trustee, Mr Nick Combis. This required the court to consider the circumstances under which trustees are appointed and removed, as well as any statutory or common law principles applicable to the situation.

The court found that there were valid reasons to remove the respondent as trustee and appoint Mr Nick Combis in his place. The decision was based on evidence presented that demonstrated the respondent's unsuitability for the role and Mr Combis's suitability. The court detailed the specific reasons for the respondent's removal and outlined the qualifications and circumstances supporting Mr Combis's appointment. The court did not make any order regarding costs.

The orders of the court were that Starkey be removed as the trustee of the estate of Peter John Dance and that Mr Nick Combis be appointed in his place, with no order as to costs. This decision was grounded in the evidence and legal principles applicable to the case, providing a clear resolution to the dispute over the trusteeship of the estate.

Orders

Orders of the court

That the respondent be removed as the trustee of the estate of Peter John Dance and that Mr Nick Combis be appointed as trustee in his place.

That there be no order as to costs.

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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