Standish v University of Tasmania

[1989] FCA 166

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JUDGMENT No. ........ .. g?-

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1 QLD E190 Of 1985
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE:  RODNEY WARREN HOFFMAN

EX PARTE:  IVOR WORRELL

Applicant

GREGORY RUDOLPH SCHILLING

Respondents

MINUTES OF ORDER

JUDGE MKING ORDER:

OF DATE ORDER: 1989 7 APRIL

- _ _ _

WHERE MADE:	BRISBANE
THE COURT ORDERS	THAT:

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

1.    the words "the Trustee i6 to repay to Mr Schilling any sum paid by Mr Schilling in reduction of the said sum of $25,000.00" in the order made on 3 February 1989 be deleted;

2. paragraph 2(a) of the same order be amended to

read: "the applicant pay Mr Schilling's costs of and incidental to the application, to be taxed, up

to a maximum of $3,500".

IN THE FEDERAL COURT OF AUSTRALIA 1

DIVISION	GENERAL	)	QLD E190 of 1985
BANKRUPTCY DISTRICT OF THE SOUTHERN	)

DISTRICT OF THE STATE OF QUEENSLAND

RE: RODNEY WARREN HOFFMAN

EX PARTE: IVOR WORRELL

Applicant

GREGORY RUDOLPH SCHILLING

HEATHER GRACE MAY HOFFMAN

Respondents

PINCUS J. 7 APRIL 1989

EX TEMPORE REASONS FOR JUDGMENT

In this matter, the orders which I have to date made are

conveniently to be found in the affidavit of	Mr Worrcll, the
trustee, sworn on 21 March 1989.	They state in part that:

"2. ...

(a) the Applicant is to pay Mr Schilllng's costs

of and incidental to the action to be taxed;

(b) (i) the Applicant I s to pay out the amount

presently	due	by Mr Schilling to the
AN2 Bank in respect of the	loan	of
$25,000.00;

(b) (ii) the Trustee is to repay to Hr

Schilling any sum paid by Mr

Schilliing in reduction of the said

sum of $25,000.00;

(c) the balance sum held by the Applicant is to be

L .

available as part of the bankrupt's estate".

Subsequent to my making those orders, counsel for Mr

Worrell appeared before me and informed me that because of a deficiency in the funds in the estate, it was desirable to vary

them. That is conceded, but there is a dispute as to the proper

extent of variation.

The papers reveal that at the time when I heard the

matter last year, Wr Worrell's opinion was that the net assets in

the estate were	in the region of	$96,000. He has since discovered
that the assets are nowhere	so great, and he says, and	I accept,
that they are insufficient to enable the orders which	I made to	be
carried out from the existing assets.

I have some sympathy with Mr Worrell because he, as I

have said in my original reasons, acted rightly in bringing the

matter to the court. Nevertheless, in the result, his contention

was unsuccessful and	I cqnnot fully relieve him of the obligation
which would fall on him personally	if my order were to stand.
There is no entirely satisfactory solution to the problem,	but it

seems to me that in the light of the further information from	Hr
Worrell (being,	I must say, inconsistent with the information

before the Court at the time of the hearing), I propose to make the following variations of my previous order of 3 February, in response to the submissions ably made on his behalf by his counsel.

The previous order included a provision, in paragraph

2(b) (ii), that the trustee should repay to Mr Schilling any sum

paid by MC Schilling in reduction of the bank debt. That

provision will be deleted; that is, paragraph 2(b)(ii) will be

deleted. It also provided for payment of costs to be taxed,

without limit. It seems to me desirable to limit the party and

party costs, in the circumstances.	It will therefore be ordered
that paragraph 2(a) be amended so as to provide	that the applicant

is to pay Mr schilling's costs of and incidental to the

application to be taxed, up to a maximum of $3,500.

: certify that this and the t w o prcceding

Par-? are a true copy of ths reasons for iud went herein of His Honour

Mr. Justice Pincur

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