Williams, P.L. v The Official Receiver & Anor Welona Pty Ltd v The Official Receiver & Anor Wilson, E.A. v The Official Receiver

[1993] FCA 29

JUDGMENT No. ........ ........ .. .... ......., as I ~ Y Y X

FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NOS 114 & 426 of 1986

)

GENERAL DIVISION	) )
BANKRUPTCY DISTRICT OF THE	)
STATE OF NEW SOUTH WALES	1

11 FEE 1993

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

REGISTRY

114 of 1986

BETWEEN : PATRICIA LORRILINE WILLIAMS Applicant

AND	THE OFFICIAL RECEIVER AND
WELONA PTY LTD Respondents
BETWEEN : WELONA PTY LTD	Applicant
AND	THE OFFICIAL RECEIVER AND
PATRICIA LORRAINE WILLIAMS Respondents
AND	THE OFFICIAL RECEIVER AND
ERNEST ARTHUR WILSON Respondents
THE COURT :	Sweeney J
PLACE	Melbourne 11 February, 1993
BETWEEN : ERNEST ARTHUR WILSON	Applicant
AND	THE OFFICIAL RECEIVER AND
WELONA PTY LTD  Respondents
BETWEEN : WELONA PTY LTD	Applicant

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.    that by consent items in the Proof of Debt numbered 2-6, 22, 29, 35, 40, 42-49, be allowed to Welona Pty Ltd to the extent claimed in the Proof of Debt namely $7,226.48;

2.    that items 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 20, 21, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 37, 38, 39, 41, 50, 51, 52, 53, 54, 55, 58, 61, 62, 63, 65, 66, and 67 be allowed to Welona Pty Limited to the extent claimed in the Proof of Debt namely $125,677.47;

3.   that, by consent, item 64 be allowed to Welona Pty limited to the extent of $585;

4.    that items 16, 17 and 18 be allowed to Welona Pty Limited to the extent of $3,295.50, $750 and $3,000 respectively

a total of $7,045.50;

5.    that items 24, 36, 56, 57, 59 and 60 be withdrawn; and

6.   subject to the right of the Trustee to be indemnified for its costs out of the assets of the bankrupt estates, the costs of Welona Pty Limited and the Official Trustee in Bankruptcy be paid by Mr Wilson and MS Williams personally.

Note :  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

A	-	FEDE	1
1

NEW SOUTH WALES DISTRICT REGISTRY ) NOS 114 & 426 of 1986

1

GENERAL DIVISION	1
)
BANKRUPTCY DISTRICT OF THE	1 1
STATE OF NEW SOUTH WALES	1
114 of 1986

BETWEEN : PATRICIA LORRAINE WILLIAMS Applicant

AND	THE OFFICIAL RECEIVER AND
WELONA PTY LTD Respondents
BETWEEN : WELONA PTY LTD	Applicant
AND	THE OFFICIAL RECEIVER AND
PATRICIA LORRAINE WILLIAMS Respondents
BETWEEN : ERNEST ARTHUR WILSON	Applicant
AND	THE OFFICIAL RECEIVER AND
WELONA PTY LTD Respondents
BETWEEN : WELONA PTY LTD	Applicant
AND	THE OFFICIAL RECEIVER AND
ERNEST ARTHUR WILSON Respondents

- 2

THE COURT :	Sweeney J
PLACE	Melbourne
DATE	11 February, 1993
ADDITIONAL REASONS FOR JUDGMENT

In my reasons for judgment of 10 December 1992 I invited further submissions from the parties as to the orders which they submitted should be made.

The draft short minutes on behalf of Welona reads as

follows :

"IT IS ORDERED

1.    THAT by Consent, Items in the Proof of Debt numbers

1, 2, 3, 4, 5, 6, 8, 19, 22, 28, 29, 35, 40,. 42, 43, 44, 45, 46, 47, 48, 49, 56, 65 and 67 be allowed

to Welona Pty. Limited to the extent claimed in the
Proof of Debt namely $27,210.40.

2.    THAT, by Consent, Item 64 be allowed to Welona Pty Limited to the extent of $585.00.

3.    THAT Items 7, 9, 10, 11, 12, 13, 14, 15, 20, 21, 23,

25, 26, 27, 30, 31, 32, 33, 34, 37, 38, 39, 41, 50, 51, 52, 53, 54, 55, 58, 61, 62, 63 and 66 be allowed

to Welona Pty Limited to the extent claimed in the
proof of debt namely $105,907.85.

4.    THAT Items 16, 17 and 18 be allowed to Welona Pty. Limited to the extent of $3,295.50, $750.00 and

$3,000.00 respectively a total of $7,045.50.

5.    THAT Items 24, 36, 57, 59 and 60 be withdrawn.

6.   THAT the costs of Welona Pty Limited and the Official Trustee in Bankruptcy be paid by Mr Wilson and MS Williams personally."

In reply it was submitted on behalf of Mr Wilson and MS

Williams as follows:

"ORDER 1:- That the only items conceded and agreed to
by the bankrupts are as follows:-

[Except for items 1 and 8, these amounts were those

claimed by Welona in its proof of debt]

ORDER 2:-	Agreed.
ORDER 3: -	Agreed.
ORDER 4:-	Agreed.
ORDER 5 :-	Agreed.
ORDER 6: -	Agreed. "

The submissions of the Official Trustee in relation to Welona's draft short minutes of orders read:

"1. The Trustee makes no comment in relation to proposed orders numbered 1. to 5.

2.   The Trustee submits that proposed Order 6 should read as follows:

'Subject to the right of the Trustee to be indemnified for its costs out of the assets of the bankrupt estates, the costs of Welona Pty Limited and the Official Trustee in Bankruptcy be paid by Mr Wilson and MS Williams personally.'"

Except for items 1 and 8 in Mr Wilson and MS Williams
submissions it was accepted that there should be orders by

consent as sought by Welona in respect of items 2, 3, 4, 5, 6,

22, 29, 35, 40, 42-49.

In respect of item 1 which had the following note annexed to it in the proof of debt:

"Rent from 2.9.84 to 28.1.85 at $332.75.

Calculated on 22 weeks
and one day

Mr Wilson and MS Williams contend that any consent should be limited to the amount for which the item was admitted by the Trustee, namely $7,089. I find that this item should be admitted in the amount claimed in the proof of debt, namely

$7,368.03. Item 1 was a claim for unpald rent from 2.9.84 to

28.1.85 at $332.75 per week. I accepted the claim in the

proof in relation to item 58, being a sum of $6,000 for the

estimated loss of rent for a six week period from 28.1.85

(the date of termination of the lease) to 6.4.85. I also accept Welona's evidence that the sum claimed in relation to item 1 was an amount properly due to it.

In respect of item 8 Mr Wilson and MS Williams contend that any consent should be limited to the amount for which the item was admitted by the Trustee namely, $140. Item 8 concerned locksmith work and the amount claimed in the proof of debt was $967.94. I accept Welona's evidsnce that the

- 5

payments were made for those purposes at reasonable rates in the circumstances, which were recoverable from the lessees under the lease.

Welona contended that there should be consent orders in respect of items numbered 19, 28, 56, 65 and 67. This having been disputed by Mr Wilson and MS Williams, I now set out my reasons in respect of them item by item.

Item 19 dealt with a claim of $2,495.40 in the proof of
debt for replacement of a "range and oven". I previously
dealt with this item in my Reasons for Judgment of 10 December

1992. I am satisfied that this payment was made for materials supplied at a reasonable cost and I allow it in full.

Item 28 related to sundry tools and hardware in the amount of $4,461.56. I accept the evidence of Welona in relation to this item. I am satisfied that the payments were made for materials supplied at a cost justifying recovery from

the lessees under the lease and I allow the amount in full.

Item 56 related to a claim for recovery of the cost of a train fare, namely $214.30. This claim was previously withdrawn by Welona and hence is not in dispute. No allowance is therefore made in respect of it.

Item 65 related to the amount of a fine for non-payment
of Liquor Licence being a sum of $58.00 which the lessee was

- 6

obliged to pay under the lease. I accept that this payment was made by Welona and is properly recoverable from M r Wilson and MS Williams as it was payable by them under clause 4(c) of the lease which reads:

"4. AND the lessee FURTHER COVENANTS with the lessor

that the lessee will:

(c) AND also shall and will annually cause application
to be made and use their best endeavours to obtain all
such licences at their own expense as are or may be
necessary for keeping open the said premises as a hotel
duly licensed for the sale and consumption therein of
spirituous and fermented liquors by retail."

Item 67 related to legal costs in the amount of $4,418.69. The particulars of this claim in Welona's proof of debt read:

"Certificate of Taxation on Supreme Court Judgment dated

7.12.84 - copy enclosed".

claim should be admitted in full. I accept the evidence of Welona and am satisfied that the In relation to costs I have previously outlined the submissions put forward by Welona, MS Williams and M r Wilson, and by the Trustee. I accept the Trustees submission as to the form of the order for costs.

- 7

Accordingly the court orders that:

1.    that by consent items in the proof of debt numbered 2-6, 22, 29, 35, 40, 42-49, be allowed to Welona Pty Ltd to the extent claimed in the proof of debt namely $7,226.48;

2.    that items 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 20, 21, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 37, 38, 39, 41, 50, 51, 52, 53, 54, 55, 58, 61, 62, 63, 65, 66, and 67 be allowed to Welona Pty. Limited to the extent claimed in the proof of debt namely $125,677.47;

3.    that, by consent, item 64 be allowed to Welona Pty limited to the extent of $585;

4.   that items 16, 17 and 18 be allowed to Welona Pty Limited to the extent of $3,295.50, $750 and $3,000 respectively a total of $7,045.50;

5.    that items 24, 36, 56, 57, 59 and 60 be withdrawn; and

6.   subject to the right of the Trustee to be indemnified for its costs out of the assets of the

bankrupt estates, the costs of Welona Pty Limited

and the Official Trustee in Bankruptcy be paid by M r

Wilson and MS Williams personally.

I certify that this and the

preceding six (6) pages
are a true copy of the Reasons
for Judgment herein of the

Honourable Mr Justice Sweeney

Dated: 11 February, 1993

Associate