mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pelechowski v NSW Land and Housing Commission [2000] FCA 233
Outcome: distinguished
The respondents also relied upon a decision of Madgwick J in Pelechowski v NSW Land and Housing Commission [2000] FCA 233. In that case, the applicant, who was a bankrupt, applied to the Industrial Relations Court for reinstatement as a result of unlawful termination of his employment by the first respondent. Madgwick J found that the trustee had not elected to prosecute the action (s 60(2)) and so the action was deemed to have been abandoned (s 60(3)). 28 The applicant contended that the question is whether the proceeding is after-acquired property within the meaning of s 58(6). Section 58(6) provides: 58(6) In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt. 34 The applicant contended that insofar as the respondents relied on Pelechowski v New South Wales Land and Housing Commission [2000] FCA 233 , that proceeding had been commenced before the making of the sequestration order which meant that the action was caught by s 60(2) of the Act. To that extent, it was contended it was not in point. 80 Madgwick J's decision in Pelechowski v NSW Land and Housing Commission [2000] FCA 233 addressed only the question whether the action was for a personal injury which was the only live issue because of the provisions of s 60(2). The action in that case was commenced before the sequestration order was made and was caught by s 60(2). Section 60(2) catches all actions not excepted by s 60(4). There was no question in that proceeding whether income, wages or earnings payable to the bankrupt after bankruptcy was property of the bankrupt or property divisible among the bankrupt's creditors.
Case: Re Gillies [1993] FCA 289 ; (1993) 115 ALR 631
Outcome: cited
Section 131 has been repealed. However, the Bankruptcy Act still contemplates that income earned after the bankrupt's bankruptcy does not vest in the bankrupt's trustee: Re Gillies [1993] FCA 289 ; (1993) 115 ALR 631 at 636-637. Whilst the trustee may require the bankrupt to make contributions out of the bankrupt's income, the Bankruptcy Act contemplates that those contributions will be made out of income in the hands of the bankrupt not the trustee. 73 The position therefore is no different from the position when s 131 was part of the Bankruptcy Act or s 101 part of the 1924 Bankruptcy Act . The bankrupt's income, after bankruptcy, does not vest in the bankrupt's trustee. 74 If the bankrupt's income does not vest in the trustee, it must be because it is not property or at least property divisible among the bankrupt's creditors. 82 The Court went on to say: A convenient summary of these provisions is to be found in the reasons of French J in Re Gillies; Ex parte Official Receiver in Bankruptcy [1993] FCA 289 ; (1993) 42 FCR 571. In that case his Honour held that although s 131(1) which had entitled "a bankrupt who is in receipt of income" to retain it for his own benefit had been repealed, Div 4B "rests upon the continuing assumption that the income of the bankrupt does not vest in the trustee". We are in respectful agreement with that view; but it does not, of course, bear upon the question whether a cause of action for breach of a contract which would, if carried out, have produced income for the bankrupt vests in the trustee.
Case: Williams v Chambers (1847) 10 QB 335
Outcome: cited
In those circumstances, the trustee cannot sue for wages or income due to the bankrupt because those wages or that income have not vested in the trustee: Williams v Chambers [1847] EngR 300 ; (1847) 10 QB 335; 116 ER 130. Indeed, even if the Court ordered (under the repealed s 131) or the trustee assessed contributions payable by the bankrupt to the trustee, no right to recover that sum or those sums vests in the trustee against the employer. The liability to pay that sum or those sums is imposed upon the bankrupt.
Case: Re Diamond Press Australia Pty Ltd [2001] NSWSC 313
Outcome: applied
The basic principles are reflected in an observation by Barrett J in Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [10] . His Honour there observed that the function of the Court on an application under s 439A is to strike an appropriate balance between the expectation that the administration would be a relatively speedy and summary matter, and the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders. This statement also reflects the object of Pt 5.3A which is stated in s 435A of the Act. A further principle which is relevant is that the impact of the prolongation of the administration may have on persons whose claims are affected by the statutory moratorium arising from Pt 5.3A of the Act. 10 Although the present application is not made under s 439A, but under s 447A, it seems to me that the principles which I have stated above should also inform the exercise of the discretion to further extend the time for convening a meeting. I am satisfied in accordance with those principles that the proper exercise of my discretion is to grant the further extension of time which is sought. I will therefore make orders in terms of [1] to [4] of the draft orders which I will sign and date, and place with the Court papers. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 27 January 2009 Solicitor for the Plaintiff: K P Farmer &amp; Associates Date of Hearing: 14 January 2009 Date of Judgment: 14 January 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/25.html
Case: Henry Walker Eltin Group Ltd (Administrator Appointed) (2005) 54 ACSR 383
Outcome: referred to
An application has now been made to the Court for a further extension of time to hold a meeting of creditors. The application is made under s 447A(1) of the Act rather than under s 439A(6). This is because there is ample authority for the proposition that the power to order an extension of time for convening a meeting under s 439A does not extend to authorising a subsequent extension under that section: see for example Henry Walker Eltin Group Ltd (Administrator Appointed) (2005) 54 ACSR 383 at [1] per Hely J. However, the decision of Hely J in Henry Walker Eltin is also authority for the proposition that there is power under s 447A of the Act to further extend the convening period, notwithstanding that an earlier extension has already been granted. 3 The reasons why the furthered extension is sought are recorded in an affidavit of Mr Chamberlain sworn on 13 January 2009. In short, the affidavit discloses that the steps required by the Registered Clubs Act 1976 (NSW) and the Registered Clubs Regulation 1996 (NSW) were duly taken, but that when the period for expressions of interest expired on 15 December 2008, only one club had contacted Mr Chamberlain in relation to the proposal. Mr Chamberlain has been advised that the club which approached him is now considering various options which require a little time for consideration. 4 Perhaps more importantly for the purposes of the present application, Mr Chamberlain has now received a number of inquiries from other sporting clubs which may lead to other options for the Club to amalgamate. Because the convening period ordered by the Court was due to expire tomorrow, Mr Chamberlain does not consider that he and the Committee of Inspection will have sufficient time to consider and respond to the various inquiries made by the relevant sporting clubs.
Case: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Outcome: referred to
The authorities which deal with the principles applicable to an extension of time to convene and hold a second meeting of creditors have been considered in a number of cases, commencing with the decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612.
Case: Adams v Lambert [2004] FCA 928 
Outcome: related
On 1 July 2004 I made the following orders in this proceeding ( Adams v Lambert [2004] FCA 928): '(1) The petition be dismissed. (2) The applicant petitioner is to pay the respondent debtor's costs (including any reserved costs).'
Case: Adams v Lambert [2006] HCA 10 
Outcome: related
On 4 April 2006 the High Court, inter alia, made the following orders ( Adams v Lambert [2006] HCA 10): '2. ... (b) the orders of Gyles J made on 1 July 2004 be set aside. 3. Remit the matter to a Judge of the Federal Court of Australia for further hearing in accordance with the reasons of this Court.'
Case: Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156 
Outcome: followed
It is submitted by counsel for the applicant creditor that the case falls squarely within the proviso to s 52(4) as the petition was dismissed. It is submitted that the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156, particularly per Toohey and Wilcox JJ at 158, confirms that conclusion. 8 The orders of the High Court and the passage of the judgment which relates to them contemplate that the matter will proceed to a hearing of the case, although there is no indication that the present issue was present to the minds of the Court. As pointed out in the passage from the judgment of Toohey and Wilcox JJ in Deputy Commissioner of Taxation v Clyne (above) somewhat anomalous results occur whichever view is taken where a petition comes on for hearing nearly two years from its date. In Rangott v Marshall [2004] FCA 961 ; (2004) 139 FCR 14 at [24] I said: 'It seems that the Act does not expressly address the imposition of an appellate regime upon the provisions in relation to sequestration and bankruptcy. That may be an accident of history.' However, as I held in that case, there is an appellate regime which applies to sequestration orders, the critical provision of which is s 28 of the Federal Court of Australia Act 1976 (Cth). 10 In my opinion, the section should not be read in that fashion as it would, in many cases, frustrate the appeal provisions. As this case illustrates, it takes time to dispose of appeals. An order extending a petition which has been dismissed could hardly be made in the meantime. It is, no doubt, for this reason that that point was not taken up either by the Full Court of this Court or by the High Court, notwithstanding invitations to do so by counsel for the applicant creditor. That conclusion is consistent with the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne . In other words, in my opinion, 'dismissal' in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 ; (2000) 100 FCR 495).
Case: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 
Outcome: distinguished
It is submitted on behalf of the debtor that, as no order has been made pursuant to subsection (5), the petition lapsed at the expiration of the period of 12 months commencing on the date of the presentation of the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261.
Case: MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72
Outcome: applied
In my opinion, an amendment should be allowed having in mind authorities such as MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 and Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64. The amendments are to deal with the debateable result of the effect of the Regulations upon undisputed primary facts as to service. The amended petition would plainly refer to precisely the same set of events as did the original petition. There is no room for misunderstanding or misleading the respondent debtor. There is no evidence led on behalf of the respondent debtor or any suggestion made on his behalf that any prejudice flows from the amendment. The amendment, however, should not include the words in parenthesis starting with 'or on' down to 'in this paragraph'. There being no prejudice, I would order that the amended petition need not be served again.
Case: Rangott v Marshall [2004] FCA 961 ; (2004) 139 FCR 14
Outcome: referred to
The orders of the High Court and the passage of the judgment which relates to them contemplate that the matter will proceed to a hearing of the case, although there is no indication that the present issue was present to the minds of the Court. As pointed out in the passage from the judgment of Toohey and Wilcox JJ in Deputy Commissioner of Taxation v Clyne (above) somewhat anomalous results occur whichever view is taken where a petition comes on for hearing nearly two years from its date. In Rangott v Marshall [2004] FCA 961 ; (2004) 139 FCR 14 at [24] I said: 'It seems that the Act does not expressly address the imposition of an appellate regime upon the provisions in relation to sequestration and bankruptcy. That may be an accident of history.' However, as I held in that case, there is an appellate regime which applies to sequestration orders, the critical provision of which is s 28 of the Federal Court of Australia Act 1976 (Cth). 9 I have no difficulty in agreeing with the submission of counsel for the applicant creditor that the decision of the Full Court in Re Young; Ex parte Smith (above) is not in point. It did not deal with the problem occasioned by the dismissal of a petition, when that dismissal is subsequently set aside on appeal. Nonetheless, the question remains as to the effect of the order of the High Court setting aside the dismissal. On one view, it is as if the dismissal had never occurred (cf Rangott v Marshall (above) at [29]). Thus, there is an argument that, as the dismissal never occurred, the proviso to s 52(4) was not met and the petition has lapsed.
Case: Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261 
Outcome: distinguished
It is submitted on behalf of the debtor that, as no order has been made pursuant to subsection (5), the petition lapsed at the expiration of the period of 12 months commencing on the date of the presentation of the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261.
Case: Re Young; Ex parte Smith (1985) 5 FCR 204 
Outcome: distinguished
It is submitted on behalf of the debtor that, as no order has been made pursuant to subsection (5), the petition lapsed at the expiration of the period of 12 months commencing on the date of the presentation of the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261. 9 I have no difficulty in agreeing with the submission of counsel for the applicant creditor that the decision of the Full Court in Re Young; Ex parte Smith (above) is not in point. It did not deal with the problem occasioned by the dismissal of a petition, when that dismissal is subsequently set aside on appeal. Nonetheless, the question remains as to the effect of the order of the High Court setting aside the dismissal. On one view, it is as if the dismissal had never occurred (cf Rangott v Marshall (above) at [29]). Thus, there is an argument that, as the dismissal never occurred, the proviso to s 52(4) was not met and the petition has lapsed.
Case: Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64
Outcome: applied
In my opinion, an amendment should be allowed having in mind authorities such as MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 and Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64. The amendments are to deal with the debateable result of the effect of the Regulations upon undisputed primary facts as to service. The amended petition would plainly refer to precisely the same set of events as did the original petition. There is no room for misunderstanding or misleading the respondent debtor. There is no evidence led on behalf of the respondent debtor or any suggestion made on his behalf that any prejudice flows from the amendment. The amendment, however, should not include the words in parenthesis starting with 'or on' down to 'in this paragraph'. There being no prejudice, I would order that the amended petition need not be served again.
Case: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 ; (2000) 100 FCR 495
Outcome: cited
In my opinion, the section should not be read in that fashion as it would, in many cases, frustrate the appeal provisions. As this case illustrates, it takes time to dispose of appeals. An order extending a petition which has been dismissed could hardly be made in the meantime. It is, no doubt, for this reason that that point was not taken up either by the Full Court of this Court or by the High Court, notwithstanding invitations to do so by counsel for the applicant creditor. That conclusion is consistent with the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne . In other words, in my opinion, 'dismissal' in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 ; (2000) 100 FCR 495).
Case: The "Angel Bell" [1979] 2 Lloyd's Rep 491
Outcome: cited
As the above observations of Sheppard J indicate, the fourth priority of claims, ahead of other in rem claims, will be claims by the mortgagee. As noted, I have determined that the Bank of Kuwait and the Middle East does have a mortgage over the ship securing the advances made to the ship and its owners by the Bank of Kuwait and the Middle East. Its mortgage, although its validity was determined by the law of Kuwait (see The "Angel Bell" [1979] 2 Lloyd's Rep 491 at 495), is treated in the priority sequence on the same basis as a domestic mortgage. See Jackson DC, Enforcement of Maritime Claims (4th ed, LLP London, 2005) p 581. There has been no submission that I should not follow that principle.
Case: Coltman v Chamberlain (1890) 25 QBD 328
Outcome: discussed
In Meeson N, Admiralty Jurisdiction and Practice (3rd ed, LLP, London 2003, at [10.68] the author quotes from Coltman v Chamberlain (1890) 25 QBD 328 in support of the proposition that a mortgage of a ship passed to the mortgagee under the word "ship" will cover: ... all articles necessary to the navigation of the ship or to the prosecution of the adventure, and without which no prudent person would sail, which were on board at the date of the mortgage and articles brought on board in substitution for them subsequently to the mortgage. The Bank of Kuwait and the Middle East relies upon that text to support its claim, as well as upon Coltman 25 QBD 328. The mortgage of a "ship" included such articles, without needing to have regard to its "appurtenances" also mortgaged under the instrument in question.
Case: The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106
Outcome: applied
On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions. 20 In The "Eurosun" and "Eurostar" [1993] 1 Lloyd's Rep 106 at 111, Sheen J said: The question whether the fuel oil was mortgaged as security for the loan is to be answered by construing the words of the mortgage. Nevertheless I cannot refrain from observing that there is something unreal in the concept of a bank manager being willing to accept an unspecified and variable amount of fuel oil as security for a loan, particularly when that fuel oil may be sold by the shipowners to charterers. If the lenders intended to accept fuel oil as part of their security, prudence would have dictated that the wording of the mortgage would include a reference specifically to fuel oil and that the deed of covenant would include a covenant not to sell the oil to a charterer. I respectfully agree with his Lordship and adopt his approach. 21 The mortgage provides that the security given over certain vessels (including the ship) would include: ... all parts of the said vessels, licences and components including the engine with all the alterations and repairs that are made to it, safety equipment, and all appendages and annexes that may be found after the conclusion of the mortgage, in addition to the wreckage of the vessels in the event of their destruction. 22 Within that description, the Bank of Kuwait and the Middle East contends that the ordinary meaning of the words "component" as part or element of a larger whole, especially a part of a machine or vehicle; "appendage" as a thing that is attached or added to something larger or more important; and "annexe" as an extra or subordinate part of a building jointed to or associated with the main building, providing additional space or accommodation all provide a means by which its mortgage included the bunkers of the ship. Whilst it is correct to say that those terms distinguish its mortgage from those considered in The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106, I do not consider that the distinction enhances the contention.
Case: The "Honshu Gloria" [1986] 2 Lloyd's Rep 67
Outcome: cited
On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions.