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
&l*lrn
Details
AGLC
Standish v University of Tasmania [1989] FCA 166
Case
[1989] FCA 166
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Standish v University of Tasmania involved a dispute concerning the administration of a bankrupt estate. The applicant, Ivor Worrell, acting as the trustee of the estate of Rodney Warren Hoffman, sought to vary previous orders made by the court regarding the payment of debts and costs. The respondents, Gregory Rudolph Schilling and Heather Grace May Hoffman, were parties to the original proceedings. The legal issues before the court centred on the proper extent of variation of the earlier orders due to a shortfall in the estate's assets. Pincus J was tasked with determining whether and to what extent the orders could be amended to reflect the true financial situation of the estate.
The court considered the trustee's submissions and found that the original orders could not be fulfilled due to insufficient funds in the estate. While the trustee had acted appropriately in bringing the matter before the court, the court could not fully absolve him of personal liability if the orders were to remain unchanged. The judge proposed variations to the previous order, including the deletion of a provision that required the trustee to repay any sums paid by Mr Schilling towards a bank debt and a limitation on the costs payable by the applicant to a maximum of $3,500. The judge reasoned that these adjustments were necessary to ensure the orders could be implemented within the available estate assets.
In conclusion, the court varied the earlier orders by deleting the provision that required the trustee to repay sums paid by Mr Schilling towards the bank debt and limiting the applicant's costs to a maximum of $3,500. These changes were made to address the shortfall in the estate's assets and to ensure the orders could be executed. The final orders were made on 7 April 1989, reflecting these adjustments and providing a resolution to the dispute.