Lofthouse (Trustee) v Stirling [2008] FCA 1936

Lofthouse (Trustee) v Stirling [2008] FCA 1936

The 9 September notice was a sufficient written declaration for the purposes of s 222B(1)(b), as it adequately conveyed the trustee's satisfaction that the respondent was in default, even though it was signed by an agent and did not use the word 'satisfied'. Any formal defect would not invalidate the termination under s 306(1) as no substantial injustice resulted.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Bankruptcy Application / Direction and Orders After Contested Hearing
Outcome
Direction made that the Personal Insolvency Agreement was terminated by resolution of creditors; submissions on costs to be filed and served within seven days.
Legal Topics
['personal Insolvency Agreements' 'requirements for Termination of PIA Under Bankruptcy Act 1966 S 222 B' 'written Declaration by Trustee' "agent's Authority to Sign Declaration" 'defaults Under Pia' 'formal Defects and Irregularities']
['bankruptcy'] ['personal Insolvency Agreements' 'requirements for Termination of PIA Under Bankruptcy Act 1966 S 222 B' 'written Declaration by Trustee' "agent's Authority to Sign Declaration" 'defaults Under Pia' 'formal Defects and Irregularities']

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Procedural Posture

Bankruptcy Application / Direction and Orders After Contested Hearing

Legal Issues

  1. 1 ['Whether the 9 September notice constituted a valid written declaration under s 222B(1)(b) of the Bankruptcy Act 1966 (Cth) for termination of a Personal Insolvency Agreement' 'Whether the written declaration must be signed personally by the trustee' "Whether the declaration must use the word 'satisfied' to indicate the trustee's state of mind" 'Whether any formal defect in the declaration invalidates the resolution to terminate the PIA']

Ratio Decidendi

The 9 September notice was a sufficient written declaration for the purposes of s 222B(1)(b), as it adequately conveyed the trustee's satisfaction that the respondent was in default, even though it was signed by an agent and did not use the word 'satisfied'. Any formal defect would not invalidate the termination under s 306(1) as no substantial injustice resulted.

Court Disposition

Direction made that the Personal Insolvency Agreement was terminated by resolution of creditors; submissions on costs to be filed and served within seven days.

Orders

  • ["The Personal Insolvency Agreement executed by the respondent on 2 May 2008 was terminated by a resolution of the respondent's creditors on 30 September 2008." 'The parties file and serve written submissions as to costs within seven days.']