Zantiotis v Andrew

[1987] FCA 722

Re: MICHAEL ANTHONY ZANTIOTIS
And: WILLIAM EDWARD ANDREW and KATY ZANTIOTIS
No. W345 of 1987
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Beaumont J.(1)

CATCHWORDS

Bankruptcy - Part X - meeting of creditors - Chairman's decision on amount in relation to vote of creditor - decision objected to by debtor - debtor seeks declaratory relief - whether decision of Chairman examinable as a "matter" under Part X coming within cognizance of the Court.

Bankruptcy Act 1966, ss.30, 82, 201.

Re Amadio (1978) 46 FLR 147, not followed.

Re Levy; Ex parte Scholefield Goodman & Sons Ltd. (1980) 50 FLR 99, followed.

HEARING

SYDNEY

#DATE 18:12:1987

Counsel and Solicitors W. Haffenden instructed by for Applicants: Lawrence F. Tanna & Co.

Counsel and Solicitors Appeared in person. for First Respondent:

Counsel and Solicitors J.M. Boland (Solicitor) for Second Respondent: instructed by Michell, Sillar & Brown.

ORDER

Objection to competency overruled.

Order that the second respondent pay the applicant's costs of the objection to competency.

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

JUDGE1

On 25 August 1987, the applicant, Mr. Zantiotis, executed an authority under s.188(1) of the Bankruptcy Act 1966 ("the Act") authorising a registered trustee, Mr. Andrew, the first respondent, to call a meeting of his creditors and to take control of his property. On 9 September 1987, a meeting of creditors was held. At the meeting, it was moved that Mr. Zantiotis execute a deed of assignment under Part X of the Act. Seventeen creditors, claiming to be owed a total of $485,65l.00, voted in favour of the proposal. A number of creditors voted against it. The minutes of the meeting record the following (Mr. Andrew was the chairman):

"...Voting Against:

ANZ Banking Group Limited

J.J. Kannes

K. Zantiotis

Price Waterhouse

State Bank of New South Wales

The chairman informed the meeting he would not allow the votes of ANZ Banking Group Limited or T.J. Kannis as neither had lodged a proxy and that pursuant to the provisions of Section 201 he would admit Mrs. Katy Zantiotis for voting purposes as a creditor for $135,789 and the State Bank of New South Wales as a creditor for $36,213. The debtor indicated his dissent to the ruling of the chairman in respect of the voting rights of Mrs. Katy Zantiotis.

The Chairman formally recorded the following votes against the motion which he declared lost as the required majority in value had not been obtained.

K. Zantiotis 135,789 Price Waterhouse 14,501 State Bank of NSW. 36,213

$186,503

ADJOURNMENT OF MEETING:

The Chairman informed the meeting there were now three alternatives available. First to adjourn the meeting to enable the debtor to reconsider his position and if thought fit submit a proposed composition for consideration by creditors.

Secondly to move the debtor file a petition for bankruptcy. In that regard he pointed out he would…