Re Marks, S.G. v. Ex parte Dowell, N.K. & Anor [1987] FCA 113

Re Marks, S.G. v. Ex parte Dowell, N.K. & Anor [1987] FCA 113

The Court determined that certain household items were necessary within the meaning of s.116(2)(b), allowing bankrupts to retain them, and that the ordinary tools of trade (printing equipment) exceeded the prescribed amount, which was $1000 at the relevant date. The discretion to allow retention of tools beyond this amount should rest with the creditors, and a further meeting should be called to determine retention of household property and tools of trade.

Parties
Applicant (trustee): Stephen Graham Marks; Respondent (bankrupt): Noel Kenneth Dowell; Respondent (bankrupt): Diana Scott Dowell
Jurisdiction
Australia
Judgment Date
13 February 1987
Procedural Posture
Bankruptcy Application / Post Bankruptcy Orders and Dispute Over Divisible Property
Outcome
Application for committal to prison denied; order for further meeting of creditors to determine retention of divisible property.
Legal Topics
Necessary Household Property, Ordinary Tools of Trade, Divisible Assets, Meeting of Creditors
Bankruptcy Necessary Household Property Ordinary Tools of Trade Divisible Assets Meeting of Creditors

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Parties

Stephen Graham Marks

Applicant (trustee)

Noel Kenneth Dowell

Respondent (bankrupt)

Diana Scott Dowell

Respondent (bankrupt)

Procedural Posture

Bankruptcy Application / Post Bankruptcy Orders and Dispute Over Divisible Property

Legal Issues

  1. 1 Whether the bankrupts complied with the trustee's direction
  2. 2 Whether certain items constitute necessary household property under s.116(2)(b) of the Bankruptcy Act 1966
  3. 3 Meaning and valuation of ordinary tools of trade under s.116(2)(c)

Ratio Decidendi

The Court determined that certain household items were necessary within the meaning of s.116(2)(b), allowing bankrupts to retain them, and that the ordinary tools of trade (printing equipment) exceeded the prescribed amount, which was $1000 at the relevant date. The discretion to allow retention of tools beyond this amount should rest with the creditors, and a further meeting should be called to determine retention of household property and tools of trade.

Court Disposition

Application for committal to prison denied; order for further meeting of creditors to determine retention of divisible property.

Orders

  • The trustee must call a further meeting of creditors within one month for the purpose of determining whether any household property and ordinary tools of trade, plant and equipment as listed should be included in property divisible amongst creditors.
  • Each party to pay their own costs of the present application.