Dick v McIntosh

background and orders sought 1 The applicant is the trustee of the respondent's bankrupt estate. The respondent was adjudged bankrupt by the High Court of Justice in London, England on 26 April 1999. 2 On 31 July 2001, pursuant to a request of the said High Court of Justice, I made orders under s 29 of the Bankruptcy Act 1966 (Cth) ("the Act") which included : "1. GREGORY MICHAEL MOLONEY, upon his consent in writing to act as Receiver, be appointed Receiver without security of the devisable property, within the meaning of section 116 of the Bankruptcy Act 1966 (Cth), of Ann Capper McIntosh situate within Australia with authority to take all necessary steps to obtain possession of and to sell the same and to receive the proceeds thereof, and, to do all such acts and things as may be necessary or expedient for the purposes of giving full force and effect hereto. 2. GREGORY MICHAEL MOLONEY be authorised to remit money received by him under these orders to the Applicant as trustee in bankruptcy in whom the estate of the bankrupt Ann Capper McIntosh is vested pursuant to section 306 of the Insolvency Act 1986 (UK) after payment of any encumbrances on the said property and of the costs, charges and expenses that may be incurred in the exercise of any of the powers hereby conferred or otherwise hereunder. 3. GREGORY MICHAEL MOLONEY be authorised to appoint, if necessary, solicitors in Australia to advise or assist him in the discharge of his duties hereunder. 4. The costs of the Applicant of and incidental to this Application including reserved costs be taxed as between solicitor and client and that when so taxed, GREGORY MICHAEL MOLONEY be at liberty to pay the same out of any monies of the bankrupt in Australia received by GREGORY MICHAEL MOLONEY. 5. The Applicant and the bankrupt be at liberty to apply to this Court on seven days notice for any consequential or ancillary orders or directions in this matter as may be necessary." 3 The applicant, pursuant to Order 5 has applied for further orders and directions. Various relief was claimed but in its final form the applicant sought the following orders : 1. That the respondent file and serve an affidavit within twenty-eight days detailing all assets held by her from 1991 to the present date. If any assets held by her have been disposed of, the date of disposal and the consideration received. 2. That a summons pursuant to s 81 of the Bankruptcy Act 1966 (Cth) issue to the respondent requiring the respondent to attend to be examined on oath. 3. The Court declare that the court appointed Receiver conduct the examinations on oath mentioned in Order 2 supra have the same powers as a Trustee could exercise in the conduct of the examination. 4. The applicant and the bankrupt be at liberty to apply to this Court on seven days notice for any ancillary or consequential orders or directions in this matter as may be necessary. 5. Such further order as the Court deems fit. 6. Costs. 4 The respondent opposed the granting of any relief. 5 By letter dated 10 August 2001, the Receiver sent to the respondent and her solicitors a form of Statement of Affairs and a form of Income Questionnaire and Statement for completion by the respondent. By facsimile dated 20 September 2001 to the respondent's solicitors, the Receiver sought documentation relating to dealings in shareholdings held by the respondent in three companies; Karina Pty Ltd ACN 010 059 915 ("Karina"), Paradise Resorts International Pty Ltd ACN 010 345 301 ("Paradise"), and Capperco Pty Ltd ACN 000 590 938 ("Capperco"). He also sought financial accounts of these companies. 6 By letter dated 4 October 2001 from the respondent's solicitors, a Statement of Affairs and Income Questionnaire was provided to the Receiver. The letter in part stated : "You will note some details are not complete. As discussed we are awaiting provision of documentation from our client's accountants and the accountants of the companies referred to in previous correspondence. We shall provide those materials to you as soon as the same are to hand." 7 The respondent disclosed in the documentation provided, that : (a) she had been a director of Karina and Paradise; (b) she had sold an undisclosed number of shares in Karina to an unknown transferee on 30 December 1996; (c) she had received $30,340 as her one-third share of an estate property sold on 21 April 2001; (d) she was unemployed and wholly supported by her husband; (e) she had no assets or income and that save for the debt of Ł425,076 owed to Lloyds of London, the petitioning creditor in her bankruptcy, she had no creditors. 8 On 12 October 2001, the Receiver sought payment of the sum of $30,340 from the respondent. 9 On 17 October 2001, the Receiver requested that the respondent attend at the Receiver's office on 26 October 2001 to discuss her financial affairs. Further correspondence passed between the Receiver's and the respondent's solicitors concerning payment of the sum of $30,340 and the provision of information to the Receiver as to the respondent's financial affairs. 10 On 5 December 2001, the respondent's solicitors wrote to the Receiver in the following terms : "Our client instructs us that the representatives of your firm have attempted to contact her family and make enquiries in relation to our client's financial affairs. Our client is not a bankrupt in Australia nor is your Mr Moloney her Trustee in Bankruptcy. As a result, we are instructed to insist that her privacy and that of her relatives is respected. We ask that you do not contact such persons in future, and as previously advised, direct all correspondence and enquiries to our firm for a response." 11 On 14 December 2001, the Receiver again wrote to the respondent's solicitors seeking information and documentation relating to the disposition by the respondent of her shareholding in the three companies, payment of the proceeds of the sale of real property in Bauer Street, Southport, Queensland and seeking the attendance of the respondent at the Receiver's office to discuss her financial affairs. The letter indicated that unless the respondent co-operated with the Receiver, the Receiver would seek orders for the respondent's examination and for the production of documents. The respondent has failed to co-operate with the Receiver. 12 On the further hearing of the application on 3 September 2002, an affidavit of Anne Campbell, solicitor, was filed on behalf of the respondent. That affidavit had attached to it print-outs of searches of the records of the Australian Securities and Investments Commission in respect of Karina, Paradise and Capperco. It also had attached real property searches of properties being Lot 2 on BUP 1734, Lot 254 on RP 89454, Lot 44 on RP 726804 and Lot 59 on BUP 3698. 13 The company searches reveal that the respondent ceased to be a director of each of the companies on 6 May 1999 and that in 1999 her shareholding in each of the companies passed to Walter Stevenson McIntosh, a person born on 18 June 1974 in Sydney, New South Wales, whose address is recorded at 50 Old Burleigh Road, Surfers Paradise, Queensland, which is disclosed in the company searches and in the respondent's Statement of Affairs as the residential address of the respondent and her husband Walter Gilbert McIntosh. 14 The real property searches disclose that : (a) Lot 2 on BUP 1734 was sold by the respondent and two others as the personal representatives of the estate of Florence Edith Capper, deceased and that the sale was registered on 6 April 2001; (b) Lot 44 on RP 726804 is owned by Capperco and is not subject to any registered encumbrance; (c) Lot 59 on BUP 3698 is owned by Capperco and is not subject to any registered encumbrance.