Re Ayoub, Elias Ex parte Silvia, Brian Raymond [1983] FCA 159

BANKRUPTCY DISTRICT OF THE STATE No. 614 of 1981 OF NEW SOUTH WALES AND THE

RE: ELIAS AYOUB EX PARTE: BRIAN RAYMOND SILVIA ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER = 8 June 1983 WHERE MADE : Sydney THE COURT DIRECTS THAT: °

1. The trustee would not be justified in paying out of

the assets of the estate in priority to unsecured creditors debts incurred between 15 July, 1981 and 22

(a) A.G. Campbell Pty. Limited $6,341.12 (b) Tooheys Limited $2,493.85 (c) Tooth & Co. Limited $5,759.41 (a)° Prestige Office Equipment . » $ 709.00

in respect of goods supplied to the bankrupt/{the dates hereinbefore referred to.

2. The trustee's costs to be paid out of the assets of the estate.

BANKRUPTCY DISTRICT OF THE S'ATE No. 614 of 1981 OF NEW SOUTH WALES AND THE

RL: ELIAS AYOUB EX PARTE: BRIAN RAYMOND SILVIA Morling Jd. 7 June 1963

This is an application by Brian Raymond Silvia, the trustee of the bankrupt estate of Elias Ayoub ("the bankrupt"). The applacation 1s brought pursuant to s.134(4)

of the Bankruptcy Act 1966 ("the Act") for directions in

respect of a matter which has arisen in connection with the administrtion of the estate of the bankrupt. The trustee seeks a direction from the court as to whether he would be justified in paying out of the assets of the estate in priority to unsecured creditors certain debts incurred by the

bankrupt between 15 July 1981 and 22 October £981. 'All the

debts are in respect of goods supplied to the bankrupt and are

(b) Toohcys Limited $2,493.65 (c) Tooth & Co. Lim2zted $5,759.41 (da) Prestige Office Equipment $ 700.60

It will be convenient to refer to these creditors as "the four creditors".

Cn 14 July 1961 a sequestration order was made against the estate of the bankrupt and the Cfficial Receiver un Bankruptcy was appointed trustee of his estate. On 22 July 1981 the bankrupt began trading in a business known as "Lexington Cellars" from premises at Maroubra. Ke had been "granted a spirit merchant's license on 10 July 19€1. Between

14 July 1981 and 23 October 1961 the bankrupt, or persons upon

his behalf, purchased liquor stock from the first three of the four creditors. the bankrupt also purchased office equipment

from Prestige Office Equipment. The debts incurred to these

It appears that although the sequestration order was made on 14 July 19681 the Official Receiver did not make contact with the bankrupt yntil 30 July 1981. The bankrupt did not tell the Official Receiver about his interest in Lexington Cellars. ' , . >

On 23 Uctober 19%1 the Official keceiver was advised that the bankrupt was conducting the business. On that date his representative visited the business and made arrangemcnts

to conduct a stock-take and to carry on the business. On 26

Cctober suppliers of liquor to the business were contacted as regards future supplies. lt then became knovn to the suppliers for the first time that the proprietor of the

business with whom they had been dealing was a bankrupt. The Official Receiver made arrangements with the suppliers to continue to supply goods to him on a C.O0.L. basis. He informed the suppliers that he would consider payment of the post-sequestration debts when the business was sold. however, he did not give any guarantee or indemnity to the suppliers as regards actual payment of their outstanding accounts.

It 1s plain that the bankrupt may have committed one or more of the offences referred to in s.269 of the Act but

Most of the stock in respect of which the four creditors' debts was incurred were supplied to the bankrupt in the two or three weeks prior to the Official Receiver first becoming aware that the bankrupt was carrying on business. There was about $14,600 worth of stock on the business premises when the Official Receiver took possession of it. It is the Cfficial Receiver's belief that most of the stock on hand when the stock-take was made comprised stock obtained from the four creditors during the period 30 September 1981 to 22 Cctober 1981. He carried on the business or some time and thereafter the present trustee continued to conduct' the business. Cn 16 June 1982 the trustee entered into a contract

to sell the business as a going concern for the sum of

$e0,000. In addition, he sold the stock to the purchaser for

about $6,500. The trustee presently holds funds in the order of $55,000 and after payment of priority creditors end trustee's remuneration and expenses he anticipates that approximately $46,000 will remain available for dastribution to unsecured creditors. Proofs of debt have been received from unsecured creditors totallang $348,311.23 and there are an addition to those unsecured creditors there are the debts of the four creditors.

In these circumstances the trustee seeks directions from the court as to whether he would be entitled to pay the four creditors 1n priority to the unsecured creditors of the estate. If the four creditors are excluded from distribution,

"the unsecured creditors could expect to receive a dividend from the estate of approximately 13.7c. in the s&. If, however, the four creditors are paid in priority, there will be available for distribution to unsecured creditors money sufficient to realise = cividend of about 9.4c. in the S.

I am satisfied that the four creditors were unaware

that a sequestration order had been made against the estate of

the bankrupt at the time they gave credit to him. However, there 1s no evidence as to what steps, 1f any, they took to ascertain the credit worthiness of the bankrupt before they supplied him with goods. ' ; . . ;

Before turning to consider what directions shoula ke

given to the trustee it will be helpful to refer to some of

the provisions of the Act. By s.82({1) it 1s provided that:

"...all debts and liabilities, ... to which a bankrupt was subject at the date of the

bankruptcy, or to which he may become subject before his discharge by reason of an obligation

incurred before the date of the bankruptcy, are provable in his bankruptcy."

provable in the bankruptcy as they were not in existence at

the date of the bankruptcy. G£ course there would be nothing

to stop any of the four creditors from taking fresh bankruptcy

proceedings against the bankrupt. If this were to occur, the

after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Cfficial Trustee or, 1f a registered trustee is the trustee of the cstate of the bankrupt, in that registered trustee."

"59(1) Where a person who is a bankrupt again becomes a bankrupt -

(2) that was acquired by, or devolved on, the bankrupt on or after the date of the earlier bankruptcy; and

(ii) that had not been distributed amongst the creditors in the

earlier bankruptcy before the date on which the person became a

shall (subject to any disposition of that property made by the trustee in the earlier bankruptcy without knowledge of the presentation of the petition on, or by

person became bankrupt on the later occasion and subject also to section 126)

vest forthwith 1n the trustee in the later bankruptcy; "

Thus, insofar as the goods supplied by the four creditors could still be identified in specie they would vest in the trustee in the later bankruptcy and be available to pay the debts admitted to proof in the second bankruptcy.

The trustee's power to carry on the business of the bankrupt is found in s.134(1)(b) of the Act. By s.109(1)(a)

,it is provided that, subject to certain provisions which are not relevant for present purposes, the trustee shall, before applying the proceeds of the property of the bankrupt in making any other payments, apply those proceeds first in payment of the taxed costs of the petitioning creditor and the costs, charges and expenses of the administration of the bankruptcy. Paragraph (a) of rule 40 of the Bankruptcy kules provides as follows:

of the Act, the trustee shall apply the proceeds of the property of the bankrupt in the following

order: - ' , : . ; (a) first, un payment of the expenses incurred

• or any part of the assets, of the bankrupt, and the expenses (if any)

incurred by him or by his authority in connexion with the cerrying on, in accord- ance with the Act, of a business of the bankrupt; "

Since it 1s plain that the debts of the four creditors were not incurred by the trustee or with his authority, neather s.109(1)(a) nor rule 40(a) would provide any justification for the payment of the debts by the trustee either in priority to other debts, or at all.

There being no other provision of the Act authorising the trustee to pay the four creditors' debts, he has sought the court's direction as to whether he should pay those debts in accordance with the principle originally laid down in Ex parte James; In re Condon (1874) L.R. 9 Ch. App. 609 and

subsequently followed and applied in many other cases both 1n

England and Australia. In James' Case money had been

voluntarily paid to a trustee in bankruptcy under a mistake of law. It was thus irrecoverable under ordinary principles. But the Court of Appeal in Chancery held that, in such a case, the trustee is not bound strictly by the law. At p. 614 James

"I am of opinion that a trustee in bankruptcy 1s an officer of the Court. He has inguisitorial powers given him by the Court, and the Court regards him as its officer, and he is to hold money in his hands upon trust for its equitable distribution among the

creditors. The Court, then, finding that he has in his hands money which in equity belongs

to some one else, ought tq set an example to the world by paying it to the person really

entitled to it. In my opinion the Court of Bankruptcy ought to be as honest as other a people."

A statement of the conditions which must exist before

the rule operates appears in the judgment of Walton J. in In

re Clarke (1975) 1 W.L.R. 559 at 563-4. First, there must be

some form of enrichment of the assets of the bankrupt by the person seeking to have the rule applied. See Government of

India v. Taylor (1955) A.C. 491 per Lord Keith at 512-513.

Next, except in the most unusual circumstances the claimant must not be in the position to submit an ordinary proof of debt. See Ex parte Whittaker, In re Shackelton (1875) 10 Ch. App. 446 and In re Gozzett, Ex parte Messenger & Co. Limited v. the Trustee (1936) 1 All E.R. 79. The purpose of the rule is not to confer a preference on an otherwise unsecured ereditor, but to provide relief to a creditor who would otherwise be without a remedy. Thirdly, and most importantly, it must be shown that it would be unfair for the trustee to "rely upon his strict legal rights.

Cases in which the rule has been applied include Ex

parte Simmonds, In re Carnac 16 Q.B.D. 308 (where a trustec

was directed to refund money paid under a mistake of law); in

re Tyler Ex parte The Official Receiver (1907) 1 K.B. 865

(where a trustee was directed to pay to the wife of a bankrupt premiums which she had paid upon a policy of life insurance on the bankrupt's life in the erroneous belief that she was

entitled to the proceeds of the policy) and In re Thellusson

Ex parte Abdy (1919) 2 K.B. 735 (where Warrington L.J., at p.

' 1 . o 743, described the Court's jurisdiction as being'a "...

jurisdiction it has often asserted of directing its officer - in this case a trustee in bankruptcy - to pursue a line of

conduct which an honest man actuated by motives of morality

and justice would pursue, although not compellable thereto by

The Australian cases in whach the rule has eather been referred to or applied include Re Henderson; Ex parte Tonkin (1934) 7 A.B.C. 273; Re Docker; Ex parte Official

Receiver (1938) 10 A.B.C. 97; Re M. & J. De Wit; Ex parte

Custom Credit Corporation Limited (1961) 19 A.B.C. 63; Re

Roberts; Official Receiver v. Lincoln Investments Limited

(1976) 26 F.L.R. 330 and Re Arcadiau; Ex parte Guardian

Investments Pty Limited (C.A. Sweeney J., 22 May 1979,

The rule in Ex parte James was referred to in Downs

Distributing Co. Pty. Limited v. Associated blue Star Stores

Pty. Limited (In liquidation) (1948) 76 C.L.k. 463. Latham

"c.d. referred at p. 476 to "the difficulties involved in

applying a criterion of honest and high minded conduct."

Williams J. reviewed the cases in which the rule has been

• but the cases as a whole appear to show that it is only in exceptional cases that the rule would be applied where the officer or his

predecessor in office has not been personally concerned in the transaction".

I turn now to consider the facts of the present case.

It 1s regrettable that the bankrupt continued to trade after

his estate had been sequestrated and that the four creditors gave him credit. But that 1s not, in itself, a particularly exceptional circumstance. The provisions of the Act dealing

with second bankruptcies contemplate that conduct of this kind

may occur and make provision for it. 1 have already said that 1 accept that the tour creditors were unaware when they dealt with the bankrupt that his estate had been sequestrated. But there 1s no evidence as to what steps, if any, they took to check the bankrupt's credit worthiness before supplying and continuing to supply him with goods. 1 would have thought that they would have had officers whose duty it was to make some assessment of the ability of their customers to meet their debts. Why they failed to become aware of the sequestration of the bankrupt's estate has not been explained. It is, I think, notorious that information as to the making of sequestration orders is readily available through services provided by mercantile agencies.

It is not as 1f the goods supplied to the bankrupt were of little value. Moreover, since the bankrupt did not commence business until July 1961 (and there is no evidence that he had been in any other business before then) it is surprising that positive steps were not taken at that time to check his financial position. In the absence of evidence to the contrary I think I should infer that either no, or inadequate, steps were taken'to do this.

The four creditors were not represented at the hearing of the application, although they knew 'of it and were aware of their right to be heard. But counsel for the trustee very fairly and competently put all that could be said in

favour of the four creditors. In particular, he pointed out

that although the stock supplied by the four creditors would

be after-acquired property of the bankrupt, it would be virtually impossible to trace 1t so as to make it available to

the creditors in any subsequent bankruptcy. He also pointed

out that by continuing to supply the Official Receiver and the trustee with goods, the liquor suppliers had enabled the business to be carried on and subsequently sold to advantage. But the liquor which was subsequently supplied was on a C.O.D. basis and it cannot be said that favourable terms of trading

were given to the Official Receiver to assist him in running

the business. It is not as if an agreement was reached

between the Official Receiver and the liquor suppliers that

they would only continue to supply goods if their debts were "met. Had this been the case, the position would have been quite different because payment of the suppliers' debts would have been akin to an expenditure necessarily made by the Official Receiver in carrying on the business. But as 1 have already observed, no guarantee was given to the four creditors that their debts would be paid.

In these circumstances, 1 do not think this is a case

for the application of the principle laid down in James' Case.

It would not be unconscionable for the trustee to require the four creditors to pursue their rights under the Act. It is not to the point that the exercise of those rights may prove fruitless. They ran the risk of doing business with the Lenuhrupt, as did the creditors vho have proved in the

bankruptcy. The Act proceeds upon the basis that debts prcvec

against an estate are to rank equally except in special

circumstances for which provision is made for. priority payment. See ss. 108 and 109. For the trustee to require the four creditors in this case to pursue the rights given to them under the Act does not amount to inequitable conduct of the kind that has hitherto been regarded as sufficient to

For these reasons I am of the opinion that the court would not be justified in directing the trustee to pay out of the assets of the estate 1n priority to unsecured creditors the debts incurred to the four creditors. However, 1t was entirely proper for the trustee to seek directions from the

court and I direct that his costs should be paid out of the

preceding pages are® true copy of the Reasons for Judgment herein of his Honour Mr. Justice Morlung.