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[1998] FCA 1660
General information, not legal advice.
Federal Court of Australia
1998-12-17
Hely J
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IN THE MATTER OF BANKRUPT ESTATE OF BRETT JOHN PARSELL & CAROLYN MAY PARSELL
AND: BRETT JOHN PARSELL & CAROLYN MAY PARSELL
THE COURT ORDERS THAT: 1. Pursuant to Section 236(1) of the Bankruptcy Act 1966, the Deed of Arrangement between the Brett John Parsell and Carolyn May Parsell, the Debtors and Alan Richard Nicholls the Trustee, is terminated. 2. The estates of Brett John Parsell and Carolyn May Parsell be sequestrated forthwith. 3. The cost of this application be costs in the bankruptcy. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE MATTER OF BANKRUPT ESTATE OF BRETT JOHN PARSELL & CAROLYN MAY PARSELL
EXTEMPORE REASONS FOR JUDGMENT HELY J: Though the evidence as to the service of this application on the debtors is unsatisfactory, I am satisfied on the basis of an affidavit of Andrew Robert Cameron of 17 December 1998 that the fact of these proceedings, and of the date for the hearing, has been drawn to the debtors attention. On 30 December 1997 the debtors entered into a deed of arrangement under Part X of the Bankruptcy Act. Clause 5 of the deed provided for payment of the sum of $40,000 to the Trustee on or before 30 June 1998. That sum was not paid. Hence I am satisfied in terms of section 236(1)(a) of the Bankruptcy Act that the debtors have failed to carry out or comply with the provision of clause 5 of the deed of arrangement. Clause 8 provides for notice of default to be given to the debtors and for them to have an opportunity of rectifying the default, failing which the Trustee shall be entitled to require the debtors to file a debtors petition. There is no evidence before me that a notice of the type called for by clause 8 has been given to the debtors. I do not think this matters, because whether or not such a notice has been given, the debtors have failed to carry out or comply with the provisions of clause 5. That default is sufficient to enliven the operation of section 236(1)(a) of the Act. Section 236(2) provides that an order terminating a deed on the ground specified in section 236(1)(a) is not to be made unless the Court is satisfied that it would be in the interest of the creditors to make such an order. A meeting of creditors took place on 16 September, 1998. At that meeting it was unanimously resolved that the Trustee should make this application. I am satisfied upon the basis of the resolution carried at that meeting, and upon the basis of the matters deposed to in paragraph 7 of the affidavit of Alan Richard Nicholls of 25 September 1998, that it would be in the interests of the creditors to make an order terminating the deed. Accordingly, I make orders 1 and 2 in accordance with the application. I am not prepared at the moment to make an order in accordance with paragraph 3 simply because I am uncertain as to what the position is, but I reserve liberty to the applicant to make further application during the course of the day for an order in terms of paragraph 3 if so advised. I also order that the cost of this application be costs in the bankruptcy. I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely
Solicitor for the Applicant: Walsh & Blair Solicitors