CIRCUMSTANCES IN WHICH THE APPLICATIONS ARE MADE
1 The applicant has made application under s 178 of the Bankruptcy Act 1966 (Cth) ("the Act") for review of what she has described as
the decision of the Respondent not to issue a Certificate of Annulment pursuant to s 153A(2) in relation to the Applicant by reason only of the Applicant's refusal to release the Respondent from any proposed legal action relating to Lot 1, Sneydes Road, Werribee South.
2 She has also applied for an extension of time to permit her to make application to the Registrar for taxation of the respondent's remuneration as trustee of her estate. Alternative and ancillary relief is also sought by her, but it is unnecessary to say more of that in these reasons.
3 At the hearing, the applicant sought to rely on a number of affidavits, namely, her own affidavit sworn 5 May 1998 and affidavits of Elizabeth Davis sworn 7 May 1998, John Boyle sworn 3 September 1998 and Robert Fabretto sworn 7 August 1998. In reply, the respondent relied on his own affidavit sworn on 10 July 1998. The respondent was subject to cross-examination.
4 Objection was taken by the respondent to the admissibility of parts of the applicant's affidavit (namely, paragraphs 5, 6 and 7) and to the whole of the affidavit of Robert Fabretto. In relation to the applicant's affidavit, it suffices to say that, save for one matter, the facts on which she relies appear from the course of correspondence which passed between the parties and their representatives. That correspondence is exhibited to the affidavits sworn by the applicant and the respondent respectively. The affidavit of John Boyle, solicitor, establishes the other matter upon which the applicant's case depends, namely, that the applicant was not advised by him in September 1997 that she might challenge the trustee's remuneration.
5 The uncontested facts are as follows. The applicant became bankrupt on 10 October 1996 and, on that date, the respondent was appointed trustee of her estate. The applicant's estate included property situated at Lot 1, Sneydes Road, Werribee South. The property, comprising about 130.1 hectares of broadacre grazing land, was subject to a first registered mortgage to the National Australia Bank Limited ("the NAB"). By a letter dated 10 February 1997, the respondent, in his capacity as trustee, informed the applicant that, following discussions with the NAB, he had formed the intention of selling two properties forming part of her estate, including the property at Sneydes Road. A copy of that letter was forwarded to the applicant's then solicitor, Mr John Boyle of Boyle and Telfer. With the NAB's consent, the respondent, as trustee, sold the Sneydes Road property on 22 May 1997 for the sum of $1,225,000.
6 Prior to selling the property in May 1997, the respondent had obtained and considered a number of valuations and reports concerning the property. They were as follows:
(a) a valuation and report from Sam Paton and Associates Pty Ltd, dated May 1996 and prepared for the NAB, indicating that, as at 24 May 1996, the property had a current market value of $400,000 and a forced sale value of $340,000.
(b) a consultancy report from Colliers Jardine dated September 1996, also prepared for the NAB, stating, in part, that "[t]he market for properties of this nature is relatively shallow with few obvious potential purchasers although it should be commented that most properties which have been actively marketed in the general location have been sold".
(c) a marketing submission dated March 1997 prepared by Colliers Jardine for the NAB, which valued the property at between $520,000 to $650,000 and stated "in the case of Sneydes Road, where an individual purchaser can be identified as willing to pay a higher than normal price, a tender would then be the best means of sale".
(d) a valuation report dated April 1997 prepared by Russell A Mark, valuer, of Brian Mark Real Estate Pty Ltd, Werribee, for the respondent, estimating the current market value of the property, as at 16 April 1997, to be $640,000.
7 The property at Sneydes Road was not advertised for sale, locally or otherwise, prior to the sale on 22 May 1997. No signs were placed on the property to indicate that it was for sale. Towards the end of April 1997, however, the respondent received an offer to purchase the property for $1,000,000, an offer which at that time was considered to be in excess of valuation. In cross-examination, the respondent said:
… we were of the view that we would be able to get the prospective purchaser up, which we did. There was quite a lot of horse trading which occurred for three to four days. A number of other offers were rejected. I think I rejected an offer of 1.1 from the same person on the basis that I was confident that I would be able to get that person up higher, and eventually we got to the stage where we believed that the purchaser would walk, had we not received the $1,225,000. At the same time I was in possession of correspondence from my agent saying that even if the property was put to auction under the current climate a figure of 1.225 million would not have been achieved by private sale.
8 When a revised offer of $1,150,000 was increased to $1,225,000 on 21 May, the respondent had discussions with the NAB and decided to accept the offer.
9 The respondent wrote to Boyle and Telfer, the then solicitors for the applicant, advising them that (1) the property had been sold; (2) sufficient funds would be realised to repay the NAB in full; and (3) vacant possession was to be given by 31 August 1997. The applicant and the purchaser were left to make arrangements for the lease back of the property. Settlement of the sale of the property was effected on 1 October 1997. The respondent, as trustee of the applicant's estate, received the balance of $184,680.02 after paying out the NAB mortgage and associated costs.
10 By a letter dated 28 October 1997, Boyle and Telfer requested payment to the applicant of some of the surplus funds. The respondent subsequently forwarded a cheque for $75,000 on account of the bankrupt's entitlement to the surplus in the estate and, at the applicant's request, a cheque for $9521.60 to meet the applicant's bill from Boyle and Telfer.
11 In December 1997 the respondent was notified, by a letter dated 11 December from the applicant's newly appointed solicitors, Barbour Arnold and Cousins, that the applicant was alleging that he had sold the property at Sneydes Road for less than its market value and that she was intending to take legal action against him. By a letter dated 22 December 1997, the respondent advised the applicant that he would be unable to give a certificate of annulment until all debts had been paid out in full, including the petitioning creditor's costs which had yet to be taxed. The respondent subsequently advised the applicant's solicitors, by a letter dated 16 February 1998, that he had received and paid the petitioning creditor's taxed bill. By a letter dated 6 January 1998, the respondent again wrote to Barbour Arnold and Cousins, setting out in some detail the steps which he had taken before selling the property by private treaty and adding that he would be unable to give a certificate of annulment "until such time I am advised by [the applicant] that I have been released by your client from any proposed legal actions in the matter".
12 By a letter dated 20 February 1998, the respondent was notified that the applicant had again changed her solicitors, the newly-engaged firm being the firm of Irlicht and Broberg. That letter further stated:
I have advised [the applicant] that once all the debts of the estate, costs of the administration and the like have all been paid, she is entitled to obtain an annulment certificate.
Please note that unless within 14 days you lodge with the Registrar (with a copy to this office) an annulment certificate, my instructions are to institute appropriate proceedings.
…
I am instructed that my client had been negotiating to sell the property for a substantially higher price and also there is a valuation of the property for a substantially higher price.
The last matter which is of concern is the question of your fees.
13 The respondent replied to Irlicht and Broberg by letter dated 26 February 1998. He substantially repeated his letter of 6 January to Barbour Arnold and Cousins. He stated, amongst other things, that:
In summary, as at 16 February 1998 I was able to issue [the applicant's] Certificate of Annulment, subject to [the applicant's] … statement of release confirming that any proposed legal actions against me would be abandoned.
…
I advise that in relation to my remuneration, I stated in my report dated 20 August 1997 to creditors that my fees and expenses to 31 July 1997 were $8,916.49 and that at the meeting of creditors which was held on 2 September 1997, the creditors were required to approve my fees and expenses to 31 July calculated on a time basis in accordance with scale of rates recommended by the Insolvency Practitioners Association of Australia and to approve any future fees and expenses to finalization to $20,000 before further authorisation from creditors was required.
14 By a letter dated 4 March 1998, Irlicht and Broberg sought, amongst other things, an extension of time in which to make application for a taxation of the trustee's costs. Cornwall Stodart, the solicitors for the respondent, responded by a letter dated 3 April 1998: no extension of time was forthcoming.
15 The circumstances relevant to the respondent's remuneration as trustee can be briefly stated. In a report to creditors dated 20 August 1997, the respondent stated that his remuneration and expenses were $8,916.49 for the period to 31 July 1997. At a meeting of creditors held on 2 September 1997 which was attended by the applicant and her then solicitor, Mr John Boyle, the creditors passed a resolution in the following terms:
That the remuneration of the trustee be fixed on the hourly rate system at the rates laid down or recommended from time to time for bankruptcy work by the Insolvency Practitioners Association of Australia for the Melbourne District together with out of pocket expenses necessary and reasonably incurred to 31 July 1997 in the sum of $8,916.49 and that the trustee can draw the remuneration and expenses on a monthly basis or as required and that future remuneration to finalisation of the administration be limited to $20,000 before further authorisation from creditors was required.
16 At the meeting of creditors no opposition was expressed or objection taken by the applicant or her solicitor (who was also a creditor) to the passage of the resolution. In an affidavit sworn 3 September 1998, however, John Boyle, the applicant's then solicitor, deposed that:
I was not aware that there was any method of challenging the remuneration of a trustee and consequently I did not advise [the applicant] that she had any rights in relation to the resolution of the meeting of creditors of [the respondent] in relation to his remuneration.
CERTIFICATE OF ANNULMENT
17 At the hearing, the applicant submitted that, by virtue of the respondent's letter of 28 February 1998, it was plain that, as at 16 February 1998, the respondent was satisfied that all the applicant's debts had been paid in full and that, by virtue of s 153A(2) of the Act, the respondent was and has since remained obliged to give "a certificate of annulment to the Official Receiver". Section 153A relevantly provides:
(1) If the trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made.
(2) The trustee must, as soon as practicable after that date, give to the Official Receiver a written certificate setting out the former bankrupt's name and bankruptcy number and the date of the annulment.
…
(6) In this section:
"bankrupt's debts" means all debts that have been proved in the bankruptcy and includes interest payable on such of those debts as bear interest, and the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee."
18 The applicant's application has been argued upon the basis that, as at 16 February 1998, but for the applicant's threat of legal action against the respondent, the respondent would have had the satisfaction referred to in s 153A(1) of the Act and would have given the certificate referred to in s 153A(2). The applicant submitted (1) that by his letter of 26 February 1998 the respondent had, in effect, stated his satisfaction as to the payment in full of the applicant's debts and (2) that, notwithstanding that the applicant proposed to institute legal proceedings against him in connection with the sale of the Sneydes Road property, no costs, charges or expenses of the administration were outstanding within s 153A(6) because (a) any costs, etc. incurred by the respondent in connection with those proceedings would not be recoverable from the estate in any event and (b) no costs, etc. had yet been incurred.
19 The applicant further submitted that, by his refusal to give a certificate of annulment, the trustee failed to act justly in accordance with the rule in Ex parte James. In re Condon (1874) LR 9 Ch App 609, because the applicant was unable to bring her case against the respondent until she was discharged from bankruptcy. In written submissions, the applicant also submitted that if the respondent were to take the release which he sought from the applicant he would breach s 165 of the Act. That section forbids a trustee from accepting a personal benefit beyond his lawful remuneration.
20 Since 11 December 1997, the applicant has been alleging, amongst other things, that the respondent sold the Sneydes Road property at undervalue and in breach of the duty which he owed to her at law: cf Adsett v Berlouis (1992) 109 ALR 100 at 108. No proceeding has yet been instituted by the applicant save for this proceeding. In the circumstances of the case, the respondent cannot be said to have acted unjustly in declining to give a certificate of annulment. I do not accept the applicant's submission that she is, in effect, without redress until the respondent gives such a certificate. Watson v Healey (1996) 64 FCR 301, a case relied on by the applicant, is authority for the proposition that a discharged bankrupt whose estate has been fully administered and finalised by his trustee cannot commence litigation in the bankruptcy jurisdiction of this Court but, where he alleges a breach of duty by his trustee, must pursue any remedy conferred by common law or equity in a court with common law or equitable jurisdiction: see Watson v Healey 64 FCR at 304. If the applicant were to be discharged and the administration of her estate concluded, then, she would be unable to invoke the bankruptcy jurisdiction of the Court in connection with her present complaint against the respondent. In that event, she might choose to institute in the Supreme Court an action for damages of the kind which, according to her, she has in contemplation. As the applicant has not yet been discharged from her bankruptcy and the administration of her estate has not yet been concluded, the applicant is entitled to invoke the jurisdiction conferred not only by s 178 but also by s 179 of the Act to seek to redress the wrong, if any, which the respondent may have done her. The administration of the applicant's estate cannot be said to be concluded for, amongst other things, the present proceeding is still on foot. I accept the respondent's submission that, in the circumstances of the case, if the applicant desired to challenge the respondent's conduct with regard to the sale of the Sneydes Road property, she might have done so under those provisions of the Act. That course remains open to her still. The cases to which the respondent referred me, namely, Re Hawkesford (1937) 10 ABC 26, Re Carson; Ex parte Carson (1960) 19 ABC 108 and Re Mineral Securities Australia Ltd (in Liq) and the Companies Act [1973] 2 NSWLR 207 indicate that, in the event that the applicant made out her case, this Court would have power under the Act to grant such relief as was appropriate in the circumstances of the case. The application of s 178 and s 179 involves a broad discretion: cf Cheesman v Waters (1997) 77 FCR 221; 143 ALR 78; also Turner v Official Trustee in Bankruptcy (unreported, Burchett, Drummond and Sackville JJ, 27 November 1998) p 3. It has not been said that, in this case, the applicant is unable to bring a proceeding in the Court's bankruptcy jurisdiction because she is without funds. As I have already noted, the respondent has advanced some $75,000 from the surplus funds to her account.
21 I accept the respondent's submission that the issue in relation to the certificate of annulment is not really whether the applicant should be required to release the respondent from any liability arising from any breach by him of his duty to the applicant, but whether, the applicant having challenged the respondent's administration of her estate in the course of that administration, that challenge falls to be dealt with within the administration. In my view, an affirmative answer should be given.
22 This conclusion is supported by the terms of s 153A(1) read with s 153A(6), the effect of which is that the applicant's bankruptcy is annulled only when the respondent is satisfied that all the costs, etc. of the administration of the bankruptcy, including the remuneration and expenses of the trustee, have been paid in full. As the respondent pointed out, the powers of a trustee include selling the bankrupt's property, obtaining advice or assistance in relation to the administration of the estate and bringing or defending any legal proceeding "relating to the administration of the estate": see s 134(1)(a), (i) and (j) of the Act. (As to the effect of annulment on the validity of acts done by the trustee in the course of his administration, see s 154 of the Act.) As a rule, a trustee is entitled to reimburse himself out of trust property in respect of all expenses incurred in or about the execution of the trust in his capacity as trustee: see National Trustees Executors and Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268 at 274 and 277. In relation to legal proceedings, the question is whether the costs and expenses incurred by a trustee were properly incurred in or about the administration of the trust. If a trustee is sued by beneficiaries complaining of some act or omission on the trustee's part, the trustee is entitled to defend his conduct as part of his administration of the trust estate and to be indemnified out of trust property in respect of costs and expenses properly incurred in so defending himself: cf R.W.G. Management Ltd v Commissioner for Corporate Affairs [1985] VR 385 at 394-5. Unless there is some contrary statutory provision, the same principles apply in the case of a trustee of a bankrupt's estate called upon to defend himself in a legal proceeding brought by the bankrupt relating to the trustee's administration of the bankrupt's estate: see Adsett v Berlouis (1992) 109 ALR 100 at 109-110. If it were shown that relevant costs and expenses were not properly incurred by the trustee in the sense explained in Adsett v Berlouis at 110-111, referring to In re Beddoe. Downes v Cottam [1893] 1 Ch 547, then the trustee would not be entitled to be indemnified from the bankrupt's estate. I do not accept the applicant's submission that, in this case, if the trustee should choose to defend a proceeding brought against him by the bankrupt relating to the sale of the Sneydes Road property, then, as things presently stand, the trustee could have no entitlement to reimbursement from the bankrupt's estate. In my view, the applicant has not shown that in defending any such proceeding, the trustee would be improperly incurring costs and expenses.
23 It is unnecessary to say much here of the action which, according to the applicant, she proposes to institute. The nature of that action was made tolerably plain by the applicant at the hearing before me: in substance, the applicant claims that had the Sneydes Road property been sold at an adequately advertised auction, it would have realised a much higher price than $1,225,000 and that, in selling the property as he did, the trustee was in breach of his duty to the bankrupt. In order to show that her claim had at least some prospects of success, the applicant relied on an affidavit sworn 7 August 1998 by Mr Robert Fabretto, a licensed real estate agent and auctioneer. For evidentiary purposes, there were, as the respondent submitted, serious deficiencies in that affidavit. I accept that, even if relevant, that affidavit is of very limited probative value. I note that in her statement of affairs the applicant herself estimated the value of the property as $900,000. On the evidence before me, including the respondent's evidence in cross-examination, the applicant's claim against the respondent in relation to the Sneydes Road property is not, it seems to me at any event, a particularly strong one. Be that as it may, the applicant has, as I have already said, not shown that the respondent could not, on any view, be entitled to be indemnified from the bankrupt's estate in respect of costs and expenses incurred by him in defending a proceeding enquiring into the sale of the Sneydes Road property.
24 I also reject the applicant's submission that because there was no proceeding against the trustee yet on foot, there were no outstanding costs or expenses of the administration of the bankruptcy and, in consequence, the trustee must be taken to have reached the satisfaction referred to in s 153A(1). There is the present proceeding which, so the applicant says, has been brought as a means of clearing the path to the institution, in the Supreme Court, of a further proceeding against the respondent. In this circumstance, I do not think it can be said by the applicant that the costs and expenses of the administration of the bankruptcy are yet at an end. I agree with the view expressed by Sackville J in Re Wong; Ex parte Wong v Donnelly (1995) 131 ALR 180 at 194 that "whether the trustee can or should be satisfied that all the bankrupt's debts have been paid for the purposes of s 153A(1) depends on the circumstances the trustee is required to assess". In this case, the respondent, as trustee of the bankrupt's estate, was entitled to consider whether the costs and expenses of the administration of the bankruptcy could properly be regarded as at an end and, in so doing, to have regard both to the fact that it was the bankrupt's stated intention to institute a proceeding relating to his administration of the estate, namely a proceeding contesting the propriety of the sale of the Sneydes Road property, and to the fact that he might reasonably choose to defend any such proceeding and properly incur costs and expenses in so doing.
25 As already noted, a proceeding has been threatened since early December 1997, but has not yet been instituted. Had a proceeding challenging the sale of the Sneydes Road property been commenced before now, the respondent would have a right to indemnify himself from the bankrupt's estate in respect of costs and expenses properly incurred in defending it. The basis of that right of indemnity was explained by Brooking J in R.W.G. Management Ltd v Commissioner for Corporate Affairs (1985) VR 385 at 395 as follows:
So far as the trustee's own position is concerned, although the right of indemnity out of assets has been described as arising out of the nature of the office of trustee, and as inseparable from it, I doubt whether this means any more than that the character of the office makes it unjust to throw burdens upon the trustee without at the same time enabling him to be reimbursed or exonerated out of the trust property.
26 By her conduct and this proceeding, the applicant seeks, in effect, to deprive the respondent of the protection to which he is entitled as trustee of her estate. The applicant submits that it would be enough if the respondent were permitted to retain the surplus funds in the estate, amounting to some $40,000 to $45,000, but were required to give a certificate of annulment. In my view, however, the applicant cannot practicably compel the respondent to give a certificate of annulment when he has not yet reached the satisfaction referred to in s 153A(1) by reason of the threatened proceeding.
[2]
EXTENSION OF TIME
27 Regulation 8.09 of the Bankruptcy Regulations relevantly confers a right on a bankrupt to request a taxation by a taxing officer of a trustee's claim for remuneration. Pursuant to regulation 8.09(1), the bankrupt must make such a request "by notice in writing lodged within 14 days of being notified in writing or becoming aware of the amount of the claim". The Court may, however, extend the time for making a request pursuant to s 33(1)(c) of the Act. The respondent's remuneration was fixed at a meeting of creditors on 2 September 1997, in accordance with s 162 of the Act. The applicant submitted that at the time of the creditors' meeting her then solicitor, John Boyle, had not told her that she could contest the respondent's remuneration; and that it was not until the respondent's letter of 6 January 1998 was received by Barbour Arnold and Cousins that the applicant became aware of the full amount that was to be paid to him. I note in passing that the last matter, if true, would diminish the importance of the absence of earlier advice.
28 Let it be accepted that Mr Boyle knew nothing of Regulation 8.09. Yet he and the applicant attended the meeting of creditors on 2 September 1997 and, according to the minutes of that meeting (the veracity of which was not contested)
The President [the respondent by election] advised that before seeking resolutions about the trustee's remuneration he would make creditors aware of two matters:
· Any creditor or their representative can move a motion to amend a proposed motion about the trustee's remuneration.
· That creditors or their representatives can ask the trustee any questions about his remuneration, and that the trustee must answer such a question.
The President invited questions about the trustee's remuneration. There were no questions.
29 It is to be noted that Mr Boyle attended the creditors' meeting as a creditor as well as the applicant's solicitor. He did not, however, exercise his right to question the trustee on his remuneration or otherwise oppose the resolution as to the trustee's remuneration. Let it be accepted that the applicant did not know the precise figure claimed by way of remuneration until the respondent's letter of 6 January. Yet she attended the meeting which fixed the respondent's remuneration in the company of her solicitor. She did not call in to question the amount of the respondent's remuneration until 20 February 1998 and did not seek an extension of time in which to request a taxation of the respondent's claim until 4 March 1998. Further, save for the applicant's assertion, by way of hearsay, that she had been told that the respondent's remuneration was excessive, the applicant did not place any admissible evidence before me that that remuneration was either excessive or in any way improper.
30 I do not accept the applicant's submission that there would be no relevant detriment if an extension of time were granted. Plainly enough, the respondent has a legitimate interest in knowing the amount of his remuneration without undue delay. Absent admissible evidence that the respondent's claim for remuneration was excessive or otherwise inappropriate, a taxation of the respondent's costs appears likely to be a waste of time and limited resources, particularly having regard to the relatively small size of the bankrupt's estate. Further, by setting relatively tight time-limits upon a request for taxation and a taxation, regulation 8.09 recognises, I think, that there is an interest in the timely settlement of a trustee's remuneration.
31 For these reasons, I would dismiss the application dated 8 May 1998.
32 I would add that it is desirable that within as short a time as possible the applicant reach a decision as to whether she wishes to institute a proceeding in connection with the sale of the Sneydes Road property. The administration of the estate should not be permitted to limp on indefinitely.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
[3]
Dated: 4 February 1999
Counsel for the Applicant: Mr T Irlicht