Re: Bankruptcy of Anser Industries Ltd.
The Master held that the levy of $15,647.91 was properly applied and, exercising the court's discretion under s.39(5) BIA, departed from the 7.5% statutory cap and fixed combined trustee fees at $45,000 with combined disbursements of $2,013.07, because the circumstances of the two related bankruptcies justified an...
Source-derived case information.
- Citation
- 2005 BCSC 1548
- Parties
- Debtor (corporation): Anser Industries Ltd.; Debtor (partnership): Anser Manufacturing; Trustee: Trustee in Bankruptcy; Superintendent (intervener): Superintendent of Bankruptcy; Judge: Master M.R. Bishop
- Court
- Supreme Court of British Columbia
- Jurisdiction
- Canada
- Judgment Date
- 2 November 2005
- Procedural Posture
- Bankruptcy Taxation of Trustee's Accounts / Taxation Hearing / Reasons for Judgment
- Outcome
- Trustee's accounts taxed as assessed; levy allowed; no costs ordered
- Legal Topics
- Trustee's Fees, Taxation of Accounts, Levy, Statutory Fee Cap and Judicial Adjustment
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anser Industries Ltd.
Debtor (corporation)
Anser Manufacturing
Debtor (partnership)
Trustee in Bankruptcy
Trustee
Superintendent of Bankruptcy
Superintendent (intervener)
Master M.R. Bishop
Judge
Procedural Posture
Bankruptcy Taxation of Trustee's Accounts / Taxation Hearing / Reasons for Judgment
Legal Issues
- 1 Whether the levy of $15,647.91 should be allowed
- 2 Whether the statutory 7.5% cap on trustee's fees under s.39(2) should be applied or varied
- 3 What aggregate fees and disbursements should be fixed for the two bankruptcies
Ratio Decidendi
The Master held that the levy of $15,647.91 was properly applied and, exercising the court's discretion under s.39(5) BIA, departed from the 7.5% statutory cap and fixed combined trustee fees at $45,000 with combined disbursements of $2,013.07, because the circumstances of the two related bankruptcies justified an upward adjustment and no creditors or inspectors opposed the accounts.
Court Disposition
Trustee's accounts taxed as assessed; levy allowed; no costs ordered
Orders
- Levy in the amount of $15,647.91 allowed
- Combined trustee fees assessed at $45,000
Full Case Text
Judgment text and source record
1 paragraphs
2005BCSC1548 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Re: Bankruptcy of Anser Industries Ltd., 2005 BCSC 1548 Date: 20051102 Docket: 27978 Registry: Vernon In The Matter of The Bankruptcy of Anser Industries Ltd. - and - Docket: 27979 Registry: Vernon In The Matter of The Bankruptcy of Anser Manufacturing Before: Master M.R. Bishop (As Registrar) Reasons for Judgment Appearing for the Trustee in Bankruptcy: D.P. Willis Appearing for the Superintendent of Bankruptcy: E. Hackman Date and Place of Hearing: October 18, 2005 Vernon, B.C. [1] In these two bankruptcies, that are related, the Trustee applies in each to have the Trustee's accounts taxed. [2] In the case of the limited company, those accounts are $8,365.72 for fees and $540.27 for disbursements. [3] In the case of the partnership, the fees are $42,380.96, with disbursements of $1,472.80. [4] There was also the issue in the partnership of the levy in the amount of $15,647.91. [5] The Superintendent has filed some comments in each of the bankruptcies and I have taken those comments into account, bearing in mind that the Superintendent's role in these proceedings is merely a supervisory one and the court is in charge of the taxation of the Trustee's accounts (see: In re Roy (1963), 4 C.B.R. (N.S.) 275). [6] Section 39(2) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sets an upper limit on the fees to be charged at 7.5 percent "of the amount remaining out of the realization of the property of the debtor after the claims of the secured creditors have been paid or satisfied." [7] Subsection (5) of s. 39 allows the court to increase or decrease the fees as it sees fit. [8] I had some concerns with respect to the application of subsection (5) and forwarded a Memorandum to Mr. Hackman (on behalf of the Superintendent) and Mr. Willis (on behalf of the Trustee). Both Mr. Hackman and Mr. Willis are content to allow me to proceed, and utilize that section if necessary with respect to the two bankruptcy proceedings. [9] On the taxation, I had indicated to counsel that I would fix the fees and disbursements as one total for fees and one total for disbursements in the two proceedings. That is what I propose to do now, but before doing that I note that there are no creditors or inspectors who have oppose the Trustees fees as set out in the statement of receipts and disbursements in each instance. [10] First, I say this is a proper case in which the levy should be applied and therefore I am allowing the levy in the amount of $15,647.91. [11] Second, I am convinced this is a case where a departure from the 7.5 percent in the Act is warranted. I assess the combined fees of the two bankruptcies in the amount of $45,000, plus disbursements as set out in the statement of receipts and disbursements totalling $2,013.07. [12] There will be no order with respect to costs. "Master M.R. Bishop as Registrar"