Tolcher (Trustee), in the matter of Aubrey (Bankrupt) v Aubrey
[2012] FCA 1047
•19 September 2012
FEDERAL COURT OF AUSTRALIA
Tolcher (Trustee), in the matter of Aubrey (Bankrupt) v Aubrey
[2012] FCA 1047
Citation: Tolcher (Trustee), in the matter of Aubrey (Bankrupt) v Aubrey [2012] FCA 1047 Parties: RAYMOND GEORGE TOLCHER IN HIS CAPACITY OF TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN AUBREY v MICHAEL JOHN AUBREY File number: NSD 1369 of 2012 Judge: BUCHANAN J Date of judgment: 19 September 2012 Date of hearing: 19 September 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr E A Walker Solicitor for the Applicant: Baker Love Lawyers Counsel for the First Respondent: The respondent did not appear.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1369 of 2012
IN THE MATTER OF MICHAEL JOHN AUBREY
BETWEEN: RAYMOND GEORGE TOLCHER IN HIS CAPACITY OF TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN AUBREY
ApplicantAND: MICHAEL JOHN AUBREY
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
19 SEPTEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The requirement for personal service of this Application on the respondent pursuant to rule 8.06 of the Federal Court Rules 2011 be dispensed with.
2.Pursuant to rule 10.24 of the Federal Court Rules 2011, service of this Application on the respondent may be effected by delivering a copy of this Application, the affidavit in support sworn by Mr Raymond George Tolcher on 7 September 2012, and a copy of these Orders, to the office of Murphy’s Lawyers at Level 2, 152 Elizabeth Street, Sydney, NSW. Pending physical delivery, the documents may be served by facsimile which service shall be taken to be effective if confirmed by physical delivery.
3.This Application, the affidavit in support sworn by Mr Raymond George Tolcher on 7 September 2012, and these Orders, are taken to be served on the respondent at the time of service of them pursuant to Order 2.
4.The matter be listed to consider the making of the final orders sought by the applicant at 9:30 am on Friday, 21 September 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1369 of 2012
IN THE MATTER OF MICHAEL JOHN AUBREY
BETWEEN: RAYMOND GEORGE TOLCHER IN HIS CAPACITY OF TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN AUBREY
ApplicantAND: MICHAEL JOHN AUBREY
Respondent
JUDGE:
BUCHANAN J
DATE:
19 SEPTEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The respondent is a bankrupt. The applicant was appointed the trustee of the respondent’s bankrupt estate on 8 December 2010. The respondent was made bankrupt on the application of a person who, for the purpose of the present proceedings, is known as GB. The use of that pseudonym was adopted by the District Court of New South Wales in order to protect the identity of that person who, on the evidence before me, is the sole creditor of the respondent. The circumstances which led to a judgment debt being obtained, and the respondent being ultimately declared bankrupt, are unfortunate and explain the circumstances in which the present application has been made.
GB met the respondent in early January 2004. A physical homosexual relationship followed, and GB became infected by the respondent with the HIV virus. In proceedings commenced by GB against the respondent, the District Court awarded GB the sum of $757,487 with costs. In those proceedings, the respondent did not appear.
Since the appointment of the applicant as trustee of the respondent’s bankrupt estate, the applicant has made extensive efforts to attempt to communicate with the respondent and obtain a statement of affairs from him. Those efforts have been unsuccessful.
Some steps have nevertheless been able to be taken by the applicant to realise some assets of the respondent. After taking into account associated costs, and the remuneration and expenses of the trustee, there remains available to the trustee at the present time $68,453.66. The applicant has made extensive efforts to identify any creditors of the respondent apart from GB, but no other creditor has been identified. In the meantime, GB’s health has deteriorated significantly, and he now finds himself, the trustee is satisfied, facing significant medical expenses and in urgent need of financial assistance.
The applicant is satisfied that in all those circumstances, and having regard to the efforts which he has made to contact the respondent and to identify other creditors, it would be appropriate to make an interim distribution to creditors represented by a payment of $50,000 to GB to assist with the payment of GB’s medical treatment. I accept the applicant’s evidence of the steps taken in the administration of the respondent’s bankrupt estate since 8 December 2010. I accept, as matters appear on the evidence before me at the moment, that a distribution to GB of $50,000 as proposed by the applicant would be warranted.
The final orders which are sought by the applicant, based on the evidence contained in an affidavit sworn by the applicant on 7 September 2012, are as follows:
1.That pursuant to section 146 of the Bankruptcy Act 1966 (Cth) (“Act”), the applicant have leave to declare and distribute an interim dividend in the sum of $50,000.00 to the one creditor that has proven his debt in the bankrupt estate of the respondent in accordance with Part VI, Division 5 of the Act, as if the respondent had filed a statement of affairs and that creditor had been stated to be a creditor therein.
2.That the applicant shall not be required to publish any further advertisement giving notice of his intention to declare and distribute the dividend referred to in Order 1.
3.The applicant’s costs of and incidental to this application be paid from the bankrupt estate of the respondent.
To this point, apart from making no contribution to the administration of his bankrupt estate by the provision of a statement of affairs or otherwise, the respondent has not appeared in the present proceedings. Service upon him, whether directly or in some substituted fashion, of the orders which are sought has not yet occurred. Although Mr Walker, who appeared for the applicant today, indicated that he wished, if possible, to have final orders made today, I think it is desirable that a final attempt be made to bring the matter to the attention of the respondent. That may be done by making interim orders which were initially sought by the applicant and which have been referred to me by the Registrar for consideration. With some slight amendments, those interim orders will be made. I will list the matter at 9.30 am on Friday, 21 September 2012, with a view to making the final orders sought by the applicant if there is no appearance at that time by or on behalf of the respondent, assuming of course that evidence is provided that service has been effected in accordance with the interim orders which I propose to make today.
I will make the interim orders sought, with the amendments discussed during the hearing. I adjourn the further hearing of the proceedings to 9.30 am on 21 September 2012.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 20 September 2012
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