Birdseye v Sheahan [2005] FCAFC 60

Birdseye v Sheahan [2005] FCAFC 60

Although the Official Trustee did not give written notice under s 157(2) and the respondent did not give written acceptance under s 157(3), the respondent had in fact consented to his appointment and both the respondent and the Official Trustee knew of the creditors' resolution. Because no s 157(2) notice was given, the s 157(5) deemed refusal period did not commence. The failures to comply with s 157(2) and s 157(3) were defects or irregularities validated by s 306(1), so the certificate of appointment issued on 7 July 2000 perfected the creditors' appointment and the appeal failed.

Jurisdiction
Australia
Judgment Date
20 April 2005
Procedural Posture
Bankruptcy Appeal / Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['appointment of Registered Trustee' 'validity of Certificate of Appointment' 'formal Defect or Irregularity' 'automatic Discharge From Bankruptcy']
['bankruptcy Law'] ['appointment of Registered Trustee' 'validity of Certificate of Appointment' 'formal Defect or Irregularity' 'automatic Discharge From Bankruptcy']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Appeal / Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the failure to give written notice of appointment under s 157(2) of the Bankruptcy Act 1966 (Cth) invalidated the appointment of the registered trustee.' 'Whether the failure of the registered trustee to inform the Official Trustee in writing of consent to act under s 157(3) of the Bankruptcy Act 1966 (Cth) invalidated the appointment.' 'Whether non-compliance with s 157(2) and s 157(3) was a formal defect or irregularity validated by s 306(1) of the Bankruptcy Act 1966 (Cth).']

Ratio Decidendi

Although the Official Trustee did not give written notice under s 157(2) and the respondent did not give written acceptance under s 157(3), the respondent had in fact consented to his appointment and both the respondent and the Official Trustee knew of the creditors' resolution. Because no s 157(2) notice was given, the s 157(5) deemed refusal period did not commence. The failures to comply with s 157(2) and s 157(3) were defects or irregularities validated by s 306(1), so the certificate of appointment issued on 7 July 2000 perfected the creditors' appointment and the appeal failed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The appellant pay to the respondents their costs of the appeal.']