Weinstein (Trustee) v Morris

[2016] FCA 993

FEDERAL COURT OF AUSTRALIA

Weinstein (Trustee) v Morris [2016] FCA 993

File number:

WAD 145 of 2016

Judge:

GILMOUR  J

Date of judgment:

9 June 2016

Catchwords:

BANKRUPTCY AND INSOLVENCY -  cross-border insolvency – US bankruptcy proceeding – recognition of US bankruptcy proceeding as foreign main proceeding under the Cross-Border Insolvency Act 2008 (Cth) and the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law

Legislation:

Bankruptcy Act 1966 (Cth)

Corporations Act 2001 (Cth) ss 9, 416, 601CL

Cross-Border Insolvency Act 2008 (Cth) s 13

Federal Court (Bankruptcy) Rules 2016 (Cth) rr 14.03, 14.07(1)(d)

Model Law on Cross-Border Insolvency of the United Nation’s Commission on International Trade Law, Articles 2, 15, 15(1), 17, 21(2), 22(1)

Cases cited:

Gainsford and Ors v Tannenbaum [2012] FCA 904

Kapila, Re Edelsten [2014] FCA 1112

Moore (as debtor-in-possession of Australian Equity Investors) v Australian Equity Investors [2012] FCA 1002

Date of hearing:

9 June 2016

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub Area:

General and Personal Insolvency

Number of paragraphs:

43

Counsel for the Applicant:

Mr L Christensen

Counsel for the Respondent:

The Respondent did not appear

ORDERS

WAD 145 of 2016

BETWEEN:

MARLEEN G WEINSTEIN IN HER CAPACITY AS TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF LILIAN MORRIS (AKA SHAMS AZAR YOUSEFI TEHRANI) APPOINTED UNDER CHAPTER 7 OF THE BANKRUPTCY CODE (US)

Applicant

AND:

LILIAN MORRIS (AKA SHAMS AZAR YOUSEFI TEHRANI)

Respondent

JUDGE:	GILMOUR  J
DATE OF ORDER:	9 JUNE 2016

THE COURT ORDERS THAT:

1.The administration and realisation of all of the respondent’s assets located in Australia be entrusted to the applicant in her capacity as trustee in bankruptcy for the estate of Lilian Morris (aka Shams Azar Yousefi Tehrani) appointed under Chapter 7 of the US Bankruptcy Code.

2.The distribution of all of the respondent’s assets located in Australia to be entrusted to the applicant, including the proceeds from the sale of a property, located at 116 Rothesay Heights, Mindarie, in the sum of $459,130.62 AUD and the additional amount of $70.68 AUD, currently being held in the Gadens Account, to be transferred to the applicant for the applicant’s possession and control for administration in connection with the US Proceedings, for the benefit of all creditors of the respondent.

3.The applicant has liberty to apply within 14 days on the question of costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1. This application concerns the cross-border insolvency of the respondent, traversing Australia and the United States of America.  The applicant, as trustee of the bankrupt estate of the respondent, seeks orders, amongst others, for the administration and realisation of the defendant’s assets in Australia to be entrusted to the applicant in her capacity as trustee of the respondent’s bankrupt estate under Chapter 7 of the United States Bankruptcy Code.

2. The applicant, at the outset of the hearing, sought the leave of the Court to amend the…