Macks as trustee of the Property of Balnaves v Ardalich [1999] FCA 679

Macks as trustee of the Property of Balnaves v Ardalich [1999] FCA 679

Section 181 of the Bankruptcy Act 1966 (Cth) contemplates a meeting called for the purpose, or as one of its purposes, of considering a motion to remove a trustee. It therefore requires seven days' notice of the motion to remove the trustee. Because no such notice was given before the 12 April 1999 creditors' meeting, the resolution dismissing Peter Ivan Macks as trustee was invalid and of no effect, and he remained trustee of the bankrupt estate.

Jurisdiction
Australia
Judgment Date
21 May 1999
Procedural Posture
Bankruptcy / Application for Declarations Concerning a Creditors' Resolution Removing a Trustee
Outcome
Application granted; the resolution removing the trustee was declared invalid and the first applicant was declared to remain trustee of the bankrupt estate.
Legal Topics
['removal of Trustee by Creditors' "notice of Creditors' Meeting and Resolution" 'court Control of Bankruptcy Administration' "validity of Creditors' Resolution"]
['bankruptcy'] ['removal of Trustee by Creditors' "notice of Creditors' Meeting and Resolution" 'court Control of Bankruptcy Administration' "validity of Creditors' Resolution"]

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Procedural Posture

Bankruptcy / Application for Declarations Concerning a Creditors' Resolution Removing a Trustee

Legal Issues

  1. 1 ["Whether s 181 of the Bankruptcy Act 1966 (Cth) required seven days' notice of the motion or resolution to remove the trustee, rather than merely seven days' notice of the creditors' meeting." 'Whether, if the resolution was otherwise valid, the Court should set it aside under s 30 of the Bankruptcy Act 1966 (Cth).' 'Whether the respondents supported the removal of the trustee for improper reasons.']

Ratio Decidendi

Section 181 of the Bankruptcy Act 1966 (Cth) contemplates a meeting called for the purpose, or as one of its purposes, of considering a motion to remove a trustee. It therefore requires seven days' notice of the motion to remove the trustee. Because no such notice was given before the 12 April 1999 creditors' meeting, the resolution dismissing Peter Ivan Macks as trustee was invalid and of no effect, and he remained trustee of the bankrupt estate.

Court Disposition

Application granted; the resolution removing the trustee was declared invalid and the first applicant was declared to remain trustee of the bankrupt estate.

Orders

  • ['The resolution passed at the meeting of the creditors of the bankrupt Peter John Balnaves on 12 April 1999 to dismiss Peter Ivan Macks as trustee of the Property of Peter John Balnaves is invalid and of no effect.' 'Peter Ivan Macks is, and presently remains, trustee of the estate of the bankrupt Peter John...