Kilroy v Melluish [2010] FMCA 86 (2 February 2010)

Last Updated: 29 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KILROY v MELLUISH

[2010] FMCA 86

BANKRUPTCY – Where application misconceived – where Trustee gives undertakings acceptable to applicant.

Bankruptcy Act 1966, s.179

Applicant:

ALEXANDRA KILROY

Respondent:

JOHN MELLUISH

File Number:

SYG 165 of 2010

Judgment of:

Raphael FM

Hearing date:

2 February 2010

Date of Last Submission:

2 February 2010

Delivered at:

Sydney

Delivered on:

2 February 2010

REPRESENTATION

Solicitors for the Applicant:

Etheringtons Solicitors

Solicitors for the Respondent:

Church & Grace

ORDERS

(1) Application dismissed.
(2) No order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 165 of 2010

ALEXANDRA KILROY

Applicant

And

JOHN MELLUISH

Respondent

REASONS FOR JUDGMENT

1. This matter came before me for hearing this morning on an application by a creditor purportedly under s.179 of the Bankruptcy Act 1966 (the “Act”). Section 179 of the Act is a section which deals with the control of trustees by the court. It allows the court to remove a trustee from office or to make such order as it thinks proper at the request, inter alia, of a creditor. Mr Lim appears for the creditor and Mr Crompton for the trustee. It seems that this is not really an application seeking control of the trustee but an application which is intended to pressure the trustee into filing a notice of objection to the automatic discharge of the bankrupt which is due to occur on 9 February 2010. As such, I think the application is misconceived and that there are more appropriate sections under which such an application should be made.
2. However, this may not be necessary because Mr Crompton has given an undertaking to the court on behalf of the trustee that his client will today lodge a notice of objection to an automatic discharge and will not withdraw that notice of objection without giving Mr Lim’s client 14 days’ notice. Mr Breckenridge kindly appeared before the court on behalf of the bankrupt. Of course, his client wishes the automatic discharge to take effect but he accepts that the appropriate procedures for dealing with the situation, as it now is, require a separate application. In all the circumstances I am of the view that the court should accept the undertaking given by Mr Crompton on behalf of the trustee and that the appropriate next step would be to dismiss the application.
3. Both parties have sought costs. Mr Crompton, on the basis that the application was, as I have found, misconceived; Mr Lim on the basis that the relief he was seeking from the court had been telegraphed to the trustee some time previously and it was only when the matter did come before the court that the undertakings, which have now been given, were given and it is only those undertakings which satisfy him. Whilst I am of the view that the form of the application is probably inappropriate, it has had the effect that the applicant has sought. But a correct form of application may have resulted in the undertaking being given without the necessity of appearance before the court. In those circumstances I make no order as to costs. The application is dismissed. The undertakings have been accepted.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 February 2010