Ewert v Martin [2018] FCA 1931

Ewert v Martin [2018] FCA 1931

The Court granted the application because the respondents had not complied with the bankruptcy notice, a creditor's petition had been filed, a trustee had consented to act, the end point of control could be specified, and the evidence showed persistent delay, non-compliance and a patent risk that sale proceeds of the Hemes Close Property would be dissipated. The appointment was in the interests of creditors, would preserve property pending determination of the creditor's petition, would not prejudice the respondents in any material way, and would not affect the secured creditor's interests.

Jurisdiction
Australia
Judgment Date
20 November 2018
Procedural Posture
Application Under S 50 of the Bankruptcy Act 1966 (cth) to Appoint a Trustee to Take Control of the Respondents' Property Before Sequestration / Urgent Application Heard Before Determination of Creditor's Petition
Outcome
Application granted; trustee appointed under s 50 of the Bankruptcy Act 1966 (Cth), restraints imposed, and costs ordered against the respondents.
Legal Topics
['appointment of Trustee Before Sequestration' "control of Debtor's Property" 'bankruptcy Notice Non Compliance' "creditor's Petition" 'risk of Dissipation of Assets' 'restraint on Dealing With Property']
['bankruptcy and Insolvency'] ['appointment of Trustee Before Sequestration' "control of Debtor's Property" 'bankruptcy Notice Non Compliance' "creditor's Petition" 'risk of Dissipation of Assets' 'restraint on Dealing With Property']

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Procedural Posture

Application Under S 50 of the Bankruptcy Act 1966 (cth) to Appoint a Trustee to Take Control of the Respondents' Property Before Sequestration / Urgent Application Heard Before Determination of Creditor's Petition

Legal Issues

  1. 1 ['Whether the prerequisites for orders under s 50 of the Bankruptcy Act 1966 (Cth) were satisfied.' "Whether appointing a trustee to take control of the respondents' property was in the interests of creditors." "Whether there was a risk that the respondents would dissipate assets or frustrate enforcement before the creditor's petition was determined." 'Whether the respondents would suffer prejudice from the appointment of a trustee before sequestration.']

Ratio Decidendi

The Court granted the application because the respondents had not complied with the bankruptcy notice, a creditor's petition had been filed, a trustee had consented to act, the end point of control could be specified, and the evidence showed persistent delay, non-compliance and a patent risk that sale proceeds of the Hemes Close Property would be dissipated. The appointment was in the interests of creditors, would preserve property pending determination of the creditor's petition, would not prejudice the respondents in any material way, and would not affect the secured creditor's interests.

Court Disposition

Application granted; trustee appointed under s 50 of the Bankruptcy Act 1966 (Cth), restraints imposed, and costs ordered against the respondents.

Orders

  • ['Subject to the interest of any secured creditor of the respondents, Nick Combis of Vincents was appointed as Trustee pursuant to s 50 of the Bankruptcy Act 1966 (Cth) to take control of all property as defined in s 5 of the Bankruptcy Act 1966 (Cth) of the respondents, including the Hemes Close Property and all...