Radin, in the Matter of; Official Trustee in Bankruptcy v Radin [1999] FCA 1467

Radin, in the Matter of; Official Trustee in Bankruptcy v Radin [1999] FCA 1467

Order 3 made on 9 June 1999 did not reflect the Court's intention that the sequestration order operate immediately on 9 June 1999 and that only proceedings under it be stayed. Because the Court lacked power to suspend the operation of a sequestration order, and because Mr Prentice had not consented to act as trustee when the sequestration order was made, order 3 should be set aside and the Official Trustee was the trustee of Michael Radin's bankrupt estate from 9 June 1999.

Jurisdiction
Australia
Judgment Date
20 October 1999
Procedural Posture
Bankruptcy Proceeding and Related Proceeding for Declaratory Relief / Hearing of the Bank's Notice of Motion to Set Aside Order 3 Made on 9 June 1999, Heard With the Official Trustee's Proceeding for a Declaration
Outcome
Order 3 made on 9 June 1999 was set aside, and a declaration was made that the Official Trustee in Bankruptcy has been since 9 June 1999, and remains, the trustee of Michael Radin's bankrupt estate.
Legal Topics
['sequestration Order' 'deed of Arrangement' 'stay of Proceedings Under a Sequestration Order' 'variation or Setting Aside of Orders' 'trustee in Bankruptcy']
['bankruptcy' 'civil Procedure'] ['sequestration Order' 'deed of Arrangement' 'stay of Proceedings Under a Sequestration Order' 'variation or Setting Aside of Orders' 'trustee in Bankruptcy']

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Procedural Posture

Bankruptcy Proceeding and Related Proceeding for Declaratory Relief / Hearing of the Bank's Notice of Motion to Set Aside Order 3 Made on 9 June 1999, Heard With the Official Trustee's Proceeding for a Declaration

Legal Issues

  1. 1 ['Whether the orders made on 9 June 1999 meant that the sequestration order operated on 9 June 1999 or only on 1 July 1999.' 'Whether the Court had power to suspend the operation of a sequestration order or make it operate only at a future date.' "Whether order 3 made on 9 June 1999 should be set aside because it did not reflect the Court's intention." 'Whether the Official Trustee in Bankruptcy or Maxwell William Prentice was the trustee of the bankrupt estate of Michael Radin.']

Ratio Decidendi

Order 3 made on 9 June 1999 did not reflect the Court's intention that the sequestration order operate immediately on 9 June 1999 and that only proceedings under it be stayed. Because the Court lacked power to suspend the operation of a sequestration order, and because Mr Prentice had not consented to act as trustee when the sequestration order was made, order 3 should be set aside and the Official Trustee was the trustee of Michael Radin's bankrupt estate from 9 June 1999.

Court Disposition

Order 3 made on 9 June 1999 was set aside, and a declaration was made that the Official Trustee in Bankruptcy has been since 9 June 1999, and remains, the trustee of Michael Radin's bankrupt estate.

Orders

  • ['In proceeding NX 57 of 1994, order 3 made on 9 June 1999 be set aside.' "In proceeding NX 57 of 1994, the parties have leave to apply on twenty-four hours' notice." 'In proceeding N 8072 of 1999, declare that the Official Trustee in Bankruptcy has been, since 9 June 1999, and remains, the trustee of the bankrupt...