Re Smith, K.A. v. Ex parte Wilde, W.J. & Pad Investments Pty Ltd [1985] FCA 329

Re Smith, K.A. v. Ex parte Wilde, W.J. & Pad Investments Pty Ltd [1985] FCA 329

Bankruptcy Act 1966 s.118(1) applied according to its terms to the respondent's receipt of execution proceeds, and there was no implied exception for an execution creditor who had become a secured creditor. The applicant trustee was therefore entitled to be paid the amount by which the $251,370.14 received by the respondent's solicitors exceeded the taxed costs of the execution.

Jurisdiction
Australia
Judgment Date
15 July 1985
Procedural Posture
Bankruptcy Application by Trustee to Recover Monies Paid Under an Execution / Reasons for Judgment and Orders
Outcome
Application allowed to the extent of a declaration that the trustee is entitled to the execution proceeds less taxed costs of execution; respondent ordered to pay the applicant's costs; further hearing adjourned.
Legal Topics
['execution Creditor' 'recovery of Execution Proceeds by Trustee' 'secured Creditor' 'bankruptcy Act 1966 S.118']
['bankruptcy' 'insolvency' 'statutory Interpretation'] ['execution Creditor' 'recovery of Execution Proceeds by Trustee' 'secured Creditor' 'bankruptcy Act 1966 S.118']

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Procedural Posture

Bankruptcy Application by Trustee to Recover Monies Paid Under an Execution / Reasons for Judgment and Orders

Legal Issues

  1. 1 ["Whether Bankruptcy Act 1966 s.118(1) required the respondent to pay to the trustee the monies received as proceeds of execution within six months before the debtor's bankruptcy." 'Whether s.118(1) contains an implied exception for an execution creditor who has become a secured creditor for bankruptcy purposes.' 'Whether any part of the money received represented trust funds for the respondent.']

Ratio Decidendi

Bankruptcy Act 1966 s.118(1) applied according to its terms to the respondent's receipt of execution proceeds, and there was no implied exception for an execution creditor who had become a secured creditor. The applicant trustee was therefore entitled to be paid the amount by which the $251,370.14 received by the respondent's solicitors exceeded the taxed costs of the execution.

Court Disposition

Application allowed to the extent of a declaration that the trustee is entitled to the execution proceeds less taxed costs of execution; respondent ordered to pay the applicant's costs; further hearing adjourned.

Orders

  • ['The applicant as trustee of the estate of the bankrupt is entitled to be paid by the respondent the amount by which the sum of $251,370.14 received by the solicitors for the respondent on 4 October 1983, in respect of warrant No. 132 of 1983 issued out of the Supreme Court of Queensland, exceeds the taxed costs of...