Coshott v Coshott [2010] FCA 300

Coshott v Coshott [2010] FCA 300

Mr Burke validly replaced the Official Trustee as trustee because Mr Karolyi, a delegate with power to nominate a new trustee, decided and instructed Ms Chau to take steps to transfer the administration to Mr Burke; that was a sufficient nomination under s 181A. Ms Chau validly acted as the Official Trustee's agent under s 308(d) in sending the notice, her typed name and the form of the notice were sufficient, and the Official Trustee was not shown to be aware of Voits as a creditor when the notice was dispatched. The Act did not require the Official Trustee to obtain and review a statement of affairs or make exhaustive inquiries before using the s 181A procedure.

Jurisdiction
Australia
Judgment Date
17 February 2010
Procedural Posture
Bankruptcy Proceedings Concerning Appointment of Trustee / Hearing of a Separate Question Under O 29 R 2 of the Federal Court Rules as to Whether John Christopher Burke Was Validly Appointed Trustee Pursuant to S 181 a of the Bankruptcy Act 1966 (cth)
Outcome
Separate question answered by declarations that John Christopher Burke replaced the Official Trustee as trustee of the bankrupt estate of Robert Gilbert Coshott on 18 December 2008 pursuant to s 181A of the Bankruptcy Act 1966.
Legal Topics
['appointment of New Trustee' 'official Trustee in Bankruptcy' 'notice to Creditors' 'agency and Delegation' 'formal Defect or Irregularity' 'sequestration Order']
['bankruptcy' 'insolvency' 'administrative Procedure'] ['appointment of New Trustee' 'official Trustee in Bankruptcy' 'notice to Creditors' 'agency and Delegation' 'formal Defect or Irregularity' 'sequestration Order']

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Procedural Posture

Bankruptcy Proceedings Concerning Appointment of Trustee / Hearing of a Separate Question Under O 29 R 2 of the Federal Court Rules as to Whether John Christopher Burke Was Validly Appointed Trustee Pursuant to S 181 a of the Bankruptcy Act 1966 (cth)

Legal Issues

  1. 1 ['Whether John Christopher Burke was validly appointed pursuant to s 181A of the Bankruptcy Act 1966 (Cth) as trustee of the bankrupt estate of Robert Gilbert Coshott.' 'Whether notice of nomination of a new trustee was validly given under ss 181A and 64A of the Bankruptcy Act 1966 (Cth).' 'Whether an agent who was not a delegate of the Official Trustee or Official Receiver could give notice of nomination of a new trustee.' 'Whether a printed or typed signature was sufficient for the notice.' "Whether the Official Trustee had to obtain and review the bankrupt's statement of affairs or make exhaustive inquiries to identify all creditors before giving notice." 'Whether any defect in the nomination or appointment would be validated by s 306 of the Bankruptcy Act 1966 (Cth).']

Ratio Decidendi

Mr Burke validly replaced the Official Trustee as trustee because Mr Karolyi, a delegate with power to nominate a new trustee, decided and instructed Ms Chau to take steps to transfer the administration to Mr Burke; that was a sufficient nomination under s 181A. Ms Chau validly acted as the Official Trustee's agent under s 308(d) in sending the notice, her typed name and the form of the notice were sufficient, and the Official Trustee was not shown to be aware of Voits as a creditor when the notice was dispatched. The Act did not require the Official Trustee to obtain and review a statement of affairs or make exhaustive inquiries before using the s 181A procedure.

Court Disposition

Separate question answered by declarations that John Christopher Burke replaced the Official Trustee as trustee of the bankrupt estate of Robert Gilbert Coshott on 18 December 2008 pursuant to s 181A of the Bankruptcy Act 1966.

Orders

  • ['In NSD 1412 of 2009, the Court declared that John Christopher Burke replaced the official trustee in bankruptcy as trustee of the estate of Robert Gilbert Coshott on 18 December 2008 pursuant to s 181A, Bankruptcy Act 1966.' "In NSD 1412 of 2009, to the extent that the second respondent incurred costs additional...