Re Hawkes, Mavis Lorraine v Ex Parte Bird, Alex Neville [1984] FCA 22

Re Hawkes, Mavis Lorraine v Ex Parte Bird, Alex Neville [1984] FCA 22

The authority given under s.188 by an undischarged bankrupt is void and cannot authorise a trustee to hold or control estate property. Any cash or stock held by the applicant remains the property of the trustee in bankruptcy and must be returned to him, with no entitlement for the applicant to deduct costs or remuneration from monies received.

Parties
Debtor: Mavis Lorraine Hawkes; Applicant: Alex Neville Bird; Trustee in Bankruptcy: J.W. O'Brien
Jurisdiction
Australia
Judgment Date
22 February 1984
Procedural Posture
Bankruptcy Application / Application for Declaration and Consequential Orders
Outcome
application granted in part
Legal Topics
Invalid Authority Under S.188, Remuneration of Trustee, After Acquired Property
Bankruptcy Invalid Authority Under S.188 Remuneration of Trustee After Acquired Property

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Parties

Mavis Lorraine Hawkes

Debtor

Alex Neville Bird

Applicant

J.W. O'Brien

Trustee in Bankruptcy

Procedural Posture

Bankruptcy Application / Application for Declaration and Consequential Orders

Legal Issues

  1. 1 Whether the authority given under s.188 of the Bankruptcy Act 1966 by an already bankrupt debtor is void
  2. 2 Whether the applicant trustee has a right to remuneration from the estate for work performed
  3. 3 Whether transferred property constitutes after-acquired property involving a transaction for valuable consideration

Ratio Decidendi

The authority given under s.188 by an undischarged bankrupt is void and cannot authorise a trustee to hold or control estate property. Any cash or stock held by the applicant remains the property of the trustee in bankruptcy and must be returned to him, with no entitlement for the applicant to deduct costs or remuneration from monies received.

Court Disposition

application granted in part

Orders

  • The purported authority under s.188 of the Bankruptcy Act 1966 dated 30 November 1983, given by the debtor to the applicant, is declared void.
  • The applicant account to Mr. J.W. O'Brien, the debtor's trustee in bankruptcy, for any stock transferred to him by or on behalf of the debtor.