FEDERAL COURT OF AUSTRALIA

King v Australian Financial Security Authority [2019] FCA 537

ORDERS

THE COURT DECLARES THAT:

1.    Pursuant to s 254(3) of the Bankruptcy Act 1966 (Cth), the applicant is entitled to moneys that have been paid to the Commonwealth by the trustee pursuant to s 254(2) in respect of the estate of Helen Maree King, those moneys being in the sum of $52,286.28.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1    By his application filed on 20 March 2019, the applicant claims as follows:

1.    Michael King is applying for unclaimed monies under s 254(3) of the Bankruptcy Act 1966 (Cth) that he is a person entitled to moneys that has been paid to the Commonwealth in relation to his mother’s former bankrupt estate.

 2.    Michael King claims under s 254(4) the amount of $52,286.63 (sic).

The applicant accepted that the correct amount should be $52,286.28.

2    By s 254(3) a person who claims to be entitled to any moneys that have been paid to the Commonwealth by a trustee in pursuance of, relevantly, s 254(2) may apply to the Court for an order declaring him to be so entitled. If the Court is satisfied that the applicant is entitled to those moneys, or a part of them, it may make an order accordingly.

3    The respondent, by a delegate of the Official Receiver – Australian Financial Security Authority (AFSA), has filed a submitting notice, submitting to any order the Court may make in the proceeding, save as to costs.

4    The evidence in support of the claim is the affidavit of the applicant affirmed 11 March 2019.

5    It appears from a letter dated 18 October 2018 that Mr Stuart William Free was appointed trustee of the bankrupt estate of Helen Maree King on 29 June 2017.

6    Mr King says that he is the only child and son of Helen Maree King who died in mid June 2017. She left no will. Mr King became the administrator of his mother’s deceased estate on 16 January 2019.

7    The bankrupt estate was annulled on 22 March 2018. As six months had passed since the annulment of the bankrupt estate, the surplus funds refundable to the bankrupt were forwarded by Messrs Jirsch Sutherland to the AFSA on 18 October 2018. The surplus funds were in the sum of $52,286.28. That sum was forwarded by cheque, pursuant to s 254 of the Bankruptcy Act.

8    By email dated 13 February 2019, the solicitors for Mr King were told by the respondent, with reference to s 254(3) of the Bankruptcy Act, that once the court order had been made then the funds would be sent to the Official Receiver for payment out pursuant to s 254(4). The email stated that once the solicitors for the applicant received the order they should forward it to the AFSA and their request to have the funds forwarded to the nominated trust account would be processed.

9    I am satisfied that the trustee of the estate of the bankrupt had under his control moneys that had remained unclaimed for a period exceeding six months and those moneys were not proposed to be distributed or paid to any person. I find that those moneys were paid to the Commonwealth pursuant to s 254(2). The applicant, Mr King, is a person who claims to be entitled to those moneys. I am also satisfied that the applicant Mr King is entitled to those moneys. No doubt the Court has a residual discretion as to whether it should make the declaration, see Cussen, in the matter of Arcuri [2016] FCA 1444 at [9], but there is no other claimant to the moneys and there is no other reason why the Court should not make the declaration sought.

10    I shall so declare. The appropriate order as to costs is that there be no order.

Associate:

Dated:    17 April 2019