Lees v O'Dea (No 2) [2014] FCA 1082

Lees v O'Dea (No 2) [2014] FCA 1082

The Hong Kong Court had bankruptcy jurisdiction and had issued a letter of request, so the Federal Court had discretionary power under s 29 of the Bankruptcy Act 1966 (Cth) to act in aid. The respondent's interest under his late mother's will was a chose in action to have the estate administered, which was divisible property situated in Australia. Because a rectification application concerning that property was foreshadowed or imminent and there would likely be no contradictor without a receiver, and because the proposed orders limited the receiver's scope and costs, it was appropriate to appoint a receiver without security.

Jurisdiction
Australia
Judgment Date
08 October 2014
Procedural Posture
Bankruptcy Application in Aid of a Foreign Bankruptcy Court Under S 29 of the Bankruptcy Act 1966 (cth) / Resumed Hearing of Interim Application for Appointment of a Receiver
Outcome
Receiver appointed and related orders made; proceeding referred to mediation.
Legal Topics
['request by Hong Kong Court to Federal Court of Australia to Act in Aid' 'appointment of Receiver Without Security' 'divisible Property Under S 116 of the Bankruptcy Act 1966 (cth)' "bankrupt Beneficiary's Chose in Action in Deceased Estate" 'discretion Under S 29 of the Bankruptcy Act 1966 (cth)']
['bankruptcy' 'cross Border Insolvency' 'receivership' 'succession and Deceased Estates'] ['request by Hong Kong Court to Federal Court of Australia to Act in Aid' 'appointment of Receiver Without Security' 'divisible Property Under S 116 of the Bankruptcy Act 1966 (cth)' "bankrupt Beneficiary's Chose in Action in Deceased Estate" 'discretion Under S 29 of the Bankruptcy Act 1966 (cth)']

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Procedural Posture

Bankruptcy Application in Aid of a Foreign Bankruptcy Court Under S 29 of the Bankruptcy Act 1966 (cth) / Resumed Hearing of Interim Application for Appointment of a Receiver

Legal Issues

  1. 1 ["Whether the Federal Court had power under s 29 of the Bankruptcy Act 1966 (Cth) to appoint a receiver of the respondent's divisible property in Australia in aid of a Hong Kong bankruptcy." "Whether the respondent's interest under his late mother's will was divisible property situated in Australia." 'Whether it was necessary and appropriate in the exercise of discretion to appoint a receiver, including because a foreshadowed rectification application might otherwise proceed without a contradictor.' 'What form of undertakings and orders should be made if a receiver was appointed.']

Ratio Decidendi

The Hong Kong Court had bankruptcy jurisdiction and had issued a letter of request, so the Federal Court had discretionary power under s 29 of the Bankruptcy Act 1966 (Cth) to act in aid. The respondent's interest under his late mother's will was a chose in action to have the estate administered, which was divisible property situated in Australia. Because a rectification application concerning that property was foreshadowed or imminent and there would likely be no contradictor without a receiver, and because the proposed orders limited the receiver's scope and costs, it was appropriate to appoint a receiver without security.

Court Disposition

Receiver appointed and related orders made; proceeding referred to mediation.

Orders

  • ["Stephen Graham Longley, of Level 21, 181 William Street Melbourne Victoria 3000, having consented in writing to act as receiver, was appointed receiver without security of the respondent's chose in action to have the estate of his late mother, Ada Elizabeth Ursich, under the Will dated 29 May 2014 administered in...