Wilson, in the matter of Wilson v Official Trustee in Bankruptcy [2000] FCA 989 (19 July 2000)

Last Updated: 28 July 2000

FEDERAL COURT OF AUSTRALIA

Wilson, in the matter of Wilson v Official Trustee in Bankruptcy [2000] FCA 989

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS v OFFICIAL TRUSTEE IN BANKRUPTCY

N 7210 OF 2000

N 7237 OF 2000

N 7507 OF 2000

EMMETT J

19 JULY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7210 OF 2000 N7237 OF 2000 N7507 OF 2000

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	19 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Proceedings N 7210 of 2000, N 7237 of 2000 and N 7507 of 2000 be consolidated into one proceeding (N 7237 of 2000).

2. Ms Williams file and serve no later than 7 August 2000 all affidavits and other evidence upon which she intends to rely in support of her application.

3. The respondent file and serve no later than 17 August 2000 all affidavits and other evidence intended to be relied upon in response to Ms Williams' claims.

4. The proceeding as consolidated be fixed for hearing before Emmett J at 10.15 am on Monday 21 August 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7210 OF 2000 N7237 OF 2000 N7507 OF 2000

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT

JUDGE:	EMMETT J
DATE:	19 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 I have before me for directions three applications, being proceedings N 7210 of 2000, N 7237 of 2000 and N 7507 of 2000. In each case the respondent is the Official Trustee in Bankruptcy ("the Trustee"). The applications seek declarations and orders said to be variously under sections 178, 179, 18, 18A, 30, 46, 53, 102, 182 and 287 of the Bankruptcy Act 1966 (Cth) (the "Bankruptcy Act"). The proceedings relate to the estates of Ernest Arthur Wilson and Patricia Lorraine Williams.

2 In the course of the directions hearing today Ms Williams, who appears in person and as the legal personal representative of the late Mr Wilson, conceded that she does not wish to proceed under any section other than s 178 of the Bankruptcy Act. Section 178 provides that if a bankrupt is affected by any act, omission or decision of the Trustee, the bankrupt may apply to the court and the court may make such order in the matter as it thinks just and equitable.

3 In the course of the directions I have endeavoured to ascertain from Ms Williams a more precise description of the acts, omissions and decisions of the Trustee of which she complains. I will set out in a moment my understanding of those acts, omissions and decisions. Ms Williams has also indicated in the course of the directions hearing that the only substantive order that she seeks is an order that the Trustee pay compensation to the estates of each of the bankrupts in respect of any loss shown to have been suffered by the estates as a consequence of the acts, omissions and decisions in question.

4 I have indicated that I will fix all three matters for hearing on 21 August 2000. On that day I will hear all evidence intended to be relied on by both parties in relation to all of the matters that are now intended to be raised in these proceedings. Because Ms Williams is not qualified as a lawyer (although she appears to have gained a great deal of knowledge and expertise as a result of considerable litigation in relation to the bankruptcies) it is probably not helpful to require a further amended application or applications to be filed.

5 Since the three proceedings all relate to the same bankrupt estates, although they are concerned with different series of complaints, it seems to me appropriate to treat the proceeding as one proceeding. Accordingly, I propose to order that the three proceedings be consolidated. The proceedings will then be heard on the basis that the only acts, omissions or decisions into which I will inquire are the ones that I will now specify. They are as follows:

1. Failure by the Trustee to initiate prosecution proceedings in respect of the false swearing of an affidavit of debt in support of the petition and false statements in the proof of debt lodged on behalf of the petitioners.

2. Making alterations to the proof of debt lodged on behalf of the petitioners which is annexure B to the affidavit of Kevin Wiggins sworn 4 May 2000 and initialling those alterations.

3. Failure to notify the bankrupts of a request made on behalf of the petitioners in or about 1989 or 1990 to withdraw their proof of debt.

4. Advising the petitioners in or about 1989 or 1990 that it was not open to them to withdraw their proof of debt.

5. Inviting both Mr Dederer and the New South Wales Bookmakers Co-operative in 1988 to lodge a proof of debt in the estate of Mr Wilson.

6. Inviting the New South Wales Bookmakers Co-operative in 1992 to lodge a proof of debt in the estate of Mr Wilson.

7. The changing, in the course of the hearing on 2 March 2000, of the Trustee's stance as to the existence of two proofs of debt lodged by the New South Wales Bookmakers Co-operative.

8. Paying in 1993, 1994 and 1995 from each of the estates moneys totalling approximately $6500 in respect of legal fees that had already been paid from the estates.

9. Paying out of each of the estates legal fees in respect of proceedings before Sweeney J and the Full Court in excess of the fees that would have been payable had the Trustee merely submitted in those proceedings to such order as the court might make other than an order as to costs.

10. Failure to seek an order under s 53 of the Bankruptcy Act that the proceedings in respect of each of the bankrupts be consolidated.

11. Charging of fees in 1993 and subsequent years at the rates that were prescribed in 1993 rather than at the rates that were current at the date of receipt of funds by the Trustee and the dates of declarations of dividends prior to 1993.

12. Failing to take steps to recover from DCAM Real Estate Agency ("DCAM") the sum of $2526.36 retained by DCAM from the proceeds of the sale of property of the bankrupts.

13. Representing to the bankrupts that they would be joined as parties in proceedings brought by DCAM under s 104 of the Bankruptcy Act in circumstances where the bankrupts were not to be joined as parties.

14. Seeking and obtaining an order that the costs of the Trustee of the proceedings under s 104 brought by DCAM be paid out of the estates of the bankrupts.

6 A copy of these reasons will be furnished to both Ms Williams and the Trustee on the basis that the matters that I have just described will be the only acts, omissions or decisions that will be the subject of the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 26 July 2000

Solicitor for the Applicants:	Ms Williams appeared in person on her behalf and as the personal legal representative of the estate of the first applicant.
Solicitor for the Respondent:	Mr M Murray for the Australian Government Solicitor
Date of Hearing:	19 July 2000
Date of Judgment:	19 July 2000