Trust Company (PTAL) Limited (Trustee for the LM Managed Performance Fund), in the matter of Drake v Drake [2014] FCA 1445

Trust Company (PTAL) Limited (Trustee for the LM Managed Performance Fund), in the matter of Drake v Drake [2014] FCA 1445

Because a bankruptcy notice had issued, Mr Drake was highly unlikely to satisfy it, bankruptcy appeared almost inevitable, there was evidence that he had property or controlled assets in Australia or overseas and had not properly accounted for substantial funds, and there was a well-founded risk that he would dissipate property or leave Australia if ASIC's existing restraints were lifted, interim orders under ss 50 and 30 of the Bankruptcy Act 1966 (Cth) were warranted to preserve property and protect the due administration of any bankrupt estate.

Jurisdiction
Australia
Judgment Date
22 December 2014
Procedural Posture
Application Pursuant to Ss 30 and 50 of the Bankruptcy Act 1966 (cth) / Urgent Ex Parte Interim Application
Outcome
Interim ex parte orders made under ss 50 and 30 of the Bankruptcy Act 1966 (Cth), operative until 4.00pm on 21 January 2015 or earlier order; costs reserved.
Legal Topics
['interim Trustee' 'asset Preservation' 'restraint on Departure From Australia' 'passport Surrender' 'substituted Service']
['bankruptcy' 'practice and Procedure'] ['interim Trustee' 'asset Preservation' 'restraint on Departure From Australia' 'passport Surrender' 'substituted Service']

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Procedural Posture

Application Pursuant to Ss 30 and 50 of the Bankruptcy Act 1966 (cth) / Urgent Ex Parte Interim Application

Legal Issues

  1. 1 ["Whether the Official Trustee in Bankruptcy should be directed under s 50 of the Bankruptcy Act 1966 (Cth) to take control of Mr Drake's property before bankruptcy." 'Whether ancillary orders should be made restraining Mr Drake from dealing with or diminishing the value of his property and requiring disclosure of his property.' 'Whether orders should be made under s 30 of the Bankruptcy Act 1966 (Cth) restraining Mr Drake from leaving Australia, attending points of international departure, holding passports, or applying for another passport.' 'Whether substituted service should be ordered where the application proceeded urgently and ex parte.']

Ratio Decidendi

Because a bankruptcy notice had issued, Mr Drake was highly unlikely to satisfy it, bankruptcy appeared almost inevitable, there was evidence that he had property or controlled assets in Australia or overseas and had not properly accounted for substantial funds, and there was a well-founded risk that he would dissipate property or leave Australia if ASIC's existing restraints were lifted, interim orders under ss 50 and 30 of the Bankruptcy Act 1966 (Cth) were warranted to preserve property and protect the due administration of any bankrupt estate.

Court Disposition

Interim ex parte orders made under ss 50 and 30 of the Bankruptcy Act 1966 (Cth), operative until 4.00pm on 21 January 2015 or earlier order; costs reserved.

Orders

  • ["The Official Trustee in Bankruptcy was directed to take control of Mr Drake's property until 4.00pm on 21 January 2015 or earlier order." 'Mr Drake was restrained from selling, transferring, otherwise dealing with, or diminishing the value of his property until 4.00pm on 21 January 2015 or earlier order.' 'The...