Re Censori, E.E. & Anor v. Ex parte Official Trustee in Bankruptcy [1985] FCA 680

Re Censori, E.E. & Anor v. Ex parte Official Trustee in Bankruptcy [1985] FCA 680

The purported telephone proxy was of no effect, leaving only one creditor validly present at the Part X creditors' meeting. Because s. 202(1) required two creditors for a quorum, the meeting was not validly held and the resolution that the debtors execute a deed of assignment under Part X was not a resolution under the Act. However, s. 222(6) precluded an order setting aside the deed because, as a practical matter, the 18 cents in the dollar dividend already paid was the final dividend and the application was made after that payment.

Jurisdiction
Australia
Judgment Date
20 December 1985
Procedural Posture
Bankruptcy Application / Application to Set Aside Deed of Assignment
Outcome
Application otherwise dismissed after declaration that it was made after payment of the final dividend.
Legal Topics
['part X Deed of Assignment' 'meeting of Creditors' 'proxy Appointment' 'quorum' 'final Dividend' 'application to Set Aside Deed']
['bankruptcy'] ['part X Deed of Assignment' 'meeting of Creditors' 'proxy Appointment' 'quorum' 'final Dividend' 'application to Set Aside Deed']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Deed of Assignment

Legal Issues

  1. 1 ['Whether a proxy purportedly appointed by telephone was effective for a meeting of creditors under Part X of the Bankruptcy Act 1966.' 'Whether the meeting of creditors had the quorum required by s. 202 of the Bankruptcy Act 1966.' 'Whether the deed of assignment could be set aside under s. 222 where the application was made after payment of the final dividend.']

Ratio Decidendi

The purported telephone proxy was of no effect, leaving only one creditor validly present at the Part X creditors' meeting. Because s. 202(1) required two creditors for a quorum, the meeting was not validly held and the resolution that the debtors execute a deed of assignment under Part X was not a resolution under the Act. However, s. 222(6) precluded an order setting aside the deed because, as a practical matter, the 18 cents in the dollar dividend already paid was the final dividend and the application was made after that payment.

Court Disposition

Application otherwise dismissed after declaration that it was made after payment of the final dividend.

Orders

  • ['It be declared that the application made on 31 October 1985 by the Official Trustee in Bankruptcy was made after the payment of the final dividend paid pursuant to the deed of assignment referred to in para. 1 of the application.' 'The application be otherwise dismissed.' 'There be liberty to apply.']