Brake v WFH Enterprises Pty Ltd

1. Pursuant to s 447A of the Corporations Act 2001 (Cth) Jason Walter Bettles and Raj Khatri be appointed as substitute Deed Administrators for WFH Enterprises Pty Ltd ACN 093 394 168 (Administrator Appointed) in place of Paul Newton Brake.
2. Pursuant to s 180 of the Bankruptcy Act 1966 (Cth) Paul Newton Brake be removed from his appointment as trustee of the Bankrupt Estate of Julie Ann-Marrie Blackman (QLD 521/7/8) and be replaced by Jason Walter Bettles and Raj Khatri in that appointment.
3. Pursuant to s 180 of the Bankruptcy Act 1966 (Cth) Paul Newton Brake be removed from his appointment as trustee of the Bankrupt Estate of Lex Michael Priddy (QLD 1296/4/0) and be replaced by Jason Walter Bettles and Raj Khatri in that appointment.
4. There be no order for costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 Mr Brake is 59 years of age. He wishes to retire. For present purposes, there are three impediments to that course. Mr Brake is currently the administrator appointed for a company, WFH Enterprises Pty Ltd ACN 093 394 168. He is also the trustee in bankruptcy of two bankrupt estates: those of Ms Julie Blackman and Mr Lex Priddy. To endeavour to remove those impediments, Mr Brake has obtained the consent of two experienced liquidators and trustees, Mr Jason Bettles and Mr Raj Khatri, to replace him, and he has applied by originating application to this Court for orders, the details of which I will come to in a moment. 2 The originating application has been served on the Australian Securities and Investments Commission and the Australian Financial Security Authority, together with Ms Blackman and Mr Priddy. As well, I note that notice of the application was published in The Courier Mail newspaper on 11 December 2017. 3 With respect to the company WFH Enterprises Pty Ltd, the application is made under s 447A of the Corporations Act 2001 (Cth). That section gives the Court power to make such orders as it thinks appropriate about how that part of the Act is to operate with respect to a particular company. In Wallace-Smith, in the matter of National Express Group Australia (Bayside Trains) Pty Ltd (2003) 46 ACSR 674; [2003] FCA 764, Finkelstein J held that s 447A gave the Court sufficient power to appoint a further administrator while one was already acting. While Mr Brake has not yet formally resigned as administrator of WFH Enterprises Pty Ltd, I am satisfied that that section provides the power to appoint Mr Bettles and Mr Khatri to replace him as administrators. I do so noting the undertaking Mr Brake has given to the Court to resign as administrator forthwith. 4 With respect to the two bankrupt estates, the application is made under s 180 of the Bankruptcy Act 1966 (Cth). That section gives the Court the power to accept the resignation of a trustee subject to such terms and conditions as it thinks fit. In Nixon, in the matter of Nixon [2015] FCA 976 at [24], Edelman J followed the approach of Buchanan J in Coshott v Burke [2013] FCA 155 and decided at [25] that the Court could accept the resignation of a sole trustee on the condition that the consenting replacement trustees are appointed in his place. 5 It is appropriate that I take the same approach as both Edelman and Buchanan JJ in this matter. 6 Accordingly, I will make the orders sought in the originating application. I will also order that there be no order for costs of the proceeding. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.