Doolan v Dare [2005] FCAFC 69

Doolan v Dare [2005] FCAFC 69

The power of creditors under s 162(1) to fix a trustee’s remuneration is not overridden by a trustee’s election to be remunerated at the prescribed rate under s 162(4). Section 162(4) applies only where remuneration is not otherwise fixed. The trustee is obliged to provide notice of the basis and method of remuneration (reg. 8.12), and creditors may fix remuneration after such notice, or in the absence of it, both prospectively and retrospectively.

Jurisdiction
Australia
Judgment Date
04 May 2005
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
['remuneration of Trustee' "creditors' Power to Fix Remuneration" 'prescribed Rate of Remuneration' 'bankruptcy Act Procedures']
['bankruptcy'] ['remuneration of Trustee' "creditors' Power to Fix Remuneration" 'prescribed Rate of Remuneration' 'bankruptcy Act Procedures']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether creditors have power to fix trustee’s remuneration regardless of trustee’s election to be remunerated at the prescribed rate under reg. 8.08 and s 162(4)' "Whether trustee must submit claim for remuneration to creditors' meeting before effect is given under s 162(4)" 'Obligations and effect of s 162(6A) and reg. 8.12 concerning notices for trustee remuneration']

Ratio Decidendi

The power of creditors under s 162(1) to fix a trustee’s remuneration is not overridden by a trustee’s election to be remunerated at the prescribed rate under s 162(4). Section 162(4) applies only where remuneration is not otherwise fixed. The trustee is obliged to provide notice of the basis and method of remuneration (reg. 8.12), and creditors may fix remuneration after such notice, or in the absence of it, both prospectively and retrospectively.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'Within seven days the parties file submissions on the costs of the appeal otherwise there be no order as to costs.']