Agostino, Salvatore v Jackson, John Henderson [1983] FCA 246

Procedural Posture

Bankruptcy Application for Directions and Declaration as to Trusteeship of a Bankrupt Estate / Reasons for Judgment Following Order Made on 5 September 1983

Legal Issues

1. 1 ["Whether John Henderson Jackson, as a registered trustee who had consented to act in connection with a creditor's petition, or the Official Trustee in Bankruptcy was the trustee of Salvatore Agostino's bankrupt estate." "Whether s.55(4A) of the Bankruptcy Act 1966 required the Registrar to search for any registered trustee consent before accepting a debtor's petition on the basis that the debtor's divisible property was less than $10,000." "Whether s.156A(3) of the Bankruptcy Act 1966 made a registered trustee the trustee of the estate where the consent was not obtained and filed in the debtor's petition proceedings when that petition was accepted."]

Ratio Decidendi

The Registrar was entitled to accept the debtor's petition once satisfied that the value of the divisible property was less than $10,000, without having to determine whether any registered trustee consent existed elsewhere. A registered trustee becomes trustee by force of s.156A(3) only if the consent is obtained and filed in the proceedings in which the petition is accepted. Because that did not occur in the debtor's petition proceedings, the Official Trustee in Bankruptcy was the trustee of Salvatore Agostino's estate.

Court Disposition

Application determined by declaration that the Official Trustee in Bankruptcy is the sole trustee of the estate of Salvatore Agostino.

Orders

• ['The Official Trustee in Bankruptcy is the sole trustee of the estate of Salvatore Agostino.' 'The question of costs is reserved.']