Searle Australia Pty Ltd v PIAC

[1992] FCA 241

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

No. OX122 of 1991

ROBERT EUGENE MURPHY

Applicant

PHILIP ARTHUR HENNESSY

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J
DATE OF ORDER:	24 April, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The property of Robert Eugene Murphy be released from the control of Philip Arthur Hennessy, his trustee.

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

.

7 MAY 1992

AUSTRALIA PHINCIPAL

HEGISTRY

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

NO OX122 of 1991

ROBERT EUGENE MURPHY

PHILIP ARTHUR HENNESSY

Respondent

CORAM:	Cooper J
DATE :	24 April, 1992
PLACE :	Brisbane

EX TEMPORE REASONS FOR JUDGEIENT

This is an application made by the applicant pursuant to section 208(a) or (b) of the Bankruptcv Act for release of his property from the control of his existing trustee, Mr Philip Arthur Hennessy. A meeting was convened to consider a proposed deed of assignment for the benefit of the

meeting was adjourned to 15 November 1992. No special	creditors of the applicant on 17 October 1991, and that
resolution as provided for in section 204 of the Act has been passed. The property of the applicant has since that time remained under the control of Mr. Hennessy.
Mr. Hennessy appears by his solicitor and does not oppose the relief sought by the applicant on this application.
At the time of the meeting the major creditor of the applicant was the National Australia Bank which bank claimed an indebtedness of approximately $3.5 million. A judgment in favour of the bank was set aside by Master White, as she then Wa6, in the Supreme Court of Queensland on 19 March 1992. So far as the claim underlying the original judgment is concerned

'that is disputed and the applicant indicates that the Supreme

Court proceedings, if they are continued, will be defended.

So far as the applicant is concerned he has other creditors totalling $368,340.00. He proposes to convene a meeting to place before his creditors a further arrangement in accordance with the provisions of the Bankru~tcv Act. The applicant has obtained from Mr. Ivor Worrell his consent to act as trustee if the property is released by the court.

I am satisfied that I have a discretion under section 208, notwithstanding the fact that no resolution has been passed. So far as that discretion is concerned, the court should, in my view, be conscious that there is a risk

trustee either by way of disposition or encumbrance to the	that property may be dealt with once it is released from a
detriment of other existing creditors.
In the instant case the applicant offers by his solicitor an undertaking to the court that he will not further encumber his assets and to sign forthwith an authority under section 188 of the Bankru~tcv Act in favour of M x Ivor Worrell in the event of my releasing his property as sought on the
application.
That undertaking being given, I order that the property of Robert Eugene Murphy be released from the control of Philip Arthur Hennessy, his trustee.

I certify that this and the two (2) preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: d 4 h 22 'q92.

jAmm M. l h / w r s -

Associate