Singh v Official Trustee in Bankruptcy

[2007] FMCA 306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v OFFICIAL TRUSTEE IN BANKRUPTCY [2007] FMCA 306

BANKRUPTCY – Adjournment of proceeding pending the outcome of foreshadowed proceedings in New Zealand by the official assignee of the applicant’s bankrupt estate, seeking a letter of request to this Court in relation to funds held by the Official Trustee in Australia which are claimed by the applicant.

Applicant: MOTI SINGH

Respondent: OFFICIAL TRUSTEE IN BANKRUPTCY

File Number: ADG296 of 2005

Judgment of: Driver FM

Hearing date: 14 February 2007

Delivered at: Sydney

Delivered on: 14 February 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr P Madden
Gretsas & Associates

INTERLOCUTORY ORDERS

1. The hearing of this matter is adjourned to 10.15am on 17 May 2007.

2. The parties have leave and liberty to file and serve any amended application in relation to the proceedings and any affidavit evidence that they may wish to rely upon no later than 11 May 2007.

3. The respondent Official Trustee shall pay the funds the subject of these proceedings currently held by him into an interest bearing trust account and shall retain the same, pending further orders of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

ADG296 of 2005

MOTI SINGH

Applicant

And

OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Having heard Mr Singh and Mr Madden, for the Official Trustee, and having considered the Memorandum of Counsel for the Official Assignee at Auckland, New Zealand, I have come to the view that these proceedings should be adjourned for a further three months.  Further, I have come to the view that as at this stage, it appears very likely that the funds held by the Official Trustee in Australia are either the property of Mr Singh or the property of the Official Assignee in New Zealand.  Those funds should be separated from the common fund in which they are held and paid into an interest bearing trust account pending orders from this Court for the disbursement of those funds.

2. Further, Mr Singh should be given the opportunity during the period of this adjournment to amend in any manner he sees fit his application to the Court, and also given the opportunity to file additional evidence in support of either his present application or any amended application.  It appears probable, based on the Memorandum of Counsel for the Official Assignee that if the Official Assignee is successful in foreshadowed proceedings in New Zealand, the Official Assignee will either directly, or through the agency of the Official Trustee, the present respondent to this proceeding, seek relief from this Court in relation to the funds held by the Official Trustee.

3. I anticipate that that will become clearer over the period of the adjournment.  I also anticipate that at the end of that period it will be possible for the Official Trustee to either accede to the orders that the Court decides at that time to make in relation to the money and cease to be a party to the proceedings or to further assist the Court as the Court may direct. 

4. I do not propose to make any order in relation to the costs of today’s hearing.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 March 2007