FEDERAL COURT OF AUSTRALIA

Wilson, in the matter of Wilson v Official Trustee in Bankruptcy

[2000] FCA 1251

BANKRUPTCY – whether trustee in bankruptcy under duty to initiate criminal prosecution in respect of false or misleading statements made in a proof of debt and an affidavit of debt – whether trustee under duty to inform bankrupts of inquiry by creditor as to possibility of withdrawing a proof of debt – role of the trustee in proceedings by a bankrupt or creditor pursuant to s 99 of the Bankruptcy Act 1966 (Cth) – remuneration of the trustee – whether fees to be determined in accordance with scale in force at time work done or at time of completion of administration

Bankruptcy Act 1966 (Cth) ss 53, 84, 99, 102, 104, 110, 163, 178, 263A, 263B

Bankruptcy Rules 1966 (Cth) rr 179, 182

Bankruptcy Regulations 1996 (Cth) reg 1607

Re PT Garuda Indonesia Ltd; Ex parte Grellman (1994) 120 ALR 641 referred to

Wilson v Official Trustee in Bankruptcy [2000] FCA 282; (2000) 97 FCR 196; (2000) 170 ALR 430 referred to

Re Barry (1930) 2 ABC 85 cited

Re Gill; Ex parte Official Receiver (1964) 6 FLR 273 cited

Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585 referred to

Adsett v Berlouis (1992) 37 FCR 201 applied

Re Athanassopoulos (1982) 41 ALR 603 followed

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS v OFFICIAL TRUSTEE IN BANKRUPTCY

N 7237 OF 2000

EMMETT J

21 & 22 AUGUST 2000

SYDNEY

IN THE MATTER OF THE BANKRUPT ESTATES OF

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

THE COURT ORDERS THAT:

1.       It be referred to a Registrar for inquiry and report on the question of whether the fees referred to in the two bills of costs marked “A” and “D” in exhibit PLW45 to the affidavit of P L Williams sworn 11 August 2000 represent expenses properly incurred by the Trustee in relation to the proceedings to which they relate having regard to the reasons for decision of 22 August 2000.

2.       The respondent file and serve by 3 October 2000 any affidavits intended to be relied on, together with an outline of submissions and contentions in support of the Trustee’s position.

3.       The applicants file and serve by 31 October 2000 any affidavits intended to be relied on, together with an outline of submissions and contentions in support of the applicants’ position.

4.       The proceedings be stood over to 1 December 2000 for directions before Emmett J.

5.       The applicants pay one half of the costs of the respondent up to the commencement of the hearing, and the respondent’s costs of the hearing on 21 August 2000.

6.      The balance of the costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF THE BANKRUPT ESTATES OF

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

REASONS FOR JUDGMENT

1                     The applicant, Ms Williams, was made bankrupt on 17 February 1986.  The Official Trustee in Bankruptcy is the trustee of her bankrupt estate.  Ms Williams was discharged from bankruptcy on 18 February 1989.  Ernest Arthur Wilson was made bankrupt on 23 April 1986 and the Official Trustee in Bankruptcy is the trustee of his bankrupt estate.  Mr Wilson was discharged from bankruptcy on 24 April 1989.  Mr Wilson died on 15 January 2000 and Ms Williams has been appointed as his legal personal representative.

2                     Ms Williams, in her own capacity and in her capacity as legal personal representative of Mr Wilson's estate, has commenced proceedings, numbers N 7210 of 2000, N 7237 of 2000, and N 7507 of 2000.  On 19 July 2000 I ordered that all three proceedings be consolidated into one and have treated proceeding N 7237 of 2000 as the consolidated proceeding. 

3                     Ms Williams seeks orders under section 178 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).  Section 178 provides that if the bankrupt is affected by any act, omission or decision of the trustee, he or she may apply to the court and the court may make such order in the matter as it thinks just and equitable.

4                     On 19 July 2000 in the course of directions hearings, a number of discrete matters were identified by Ms Williams as being the subject of the complaint made under section 178.  I directed that the proceeding would be heard on the basis that the only acts, omissions or decisions into which I would inquire were the ones that were then specified.  I have now received further material by way of affidavits from Ms Williams to which a number of documents have been exhibited.  I also have an affidavit of Robert John Cruikshanks.  Mr Cruikshanks is employed in the office of the Official Receiver in Bankruptcy. 

5                     I shall deal separately with each of the matters identified by Ms Williams as the subject of her complaint.

failure by the trustee to INITIATE PROSECUTION PROCEEDINGS in respect of the false swearing of an affidavit of debt in support of THE petition and false statements in the proof of debt lodged on behalf of the petitioners

6                     The sequestration orders were based upon a default judgment obtained in the District Court of New South Wales against Ms Williams and Mr Wilson.  The affidavit of debt in Ms Williams’ case was sworn by Austin Wiggins, Rene Wiggins, Don Wiggins and Kevin Robinson (“the Petitioners”).  Austin and Rene Wiggins were husband and wife and are both now dead.  Don Wiggins was their son and Kevin Robinson their son-in-law.  The affidavit of debt in Mr Wilson’s case was sworn by Austin Wiggins on behalf of all Petitioners.

7                     The affidavits of debt alleged indebtedness on the part of Ms Williams and Mr Wilson in the sum of $60,500.96 and $66,132.60 respectively.  Proof of debt was lodged by the Petitioners in both estates.  On the basis of the evidence before me it appears that a single document was treated as a proof in both estates, although it may be that one form of document was varied for one of the estates.  The proof of debt claimed an amount of $38,228.71.  Ms Williams points to the fact that that sum is substantially less than the amount referred to in the affidavits of debt in support of the petitions.  The difference is to be explained by the fact that the Petitioners acknowledged, prior to the filing of the proof of debt, that payments had been made by Mr Wilson in reduction of the amounts owing. 

8                     The amount claimed in the proof of debt was also disputed by Mr Wilson because it failed to take account of an allowance of $10,000 that it was established should have been made against the debt.  After that allowance was made and interest was recalculated, the proof was allowed at $19,329.  That reduction resulted from a number of communications between the Trustee on the one hand and the petitioners and Mr Wilson on the other hand.  Ms Williams points to the fact that the amount for which proof was finally allowed was significantly less than the amount claimed in the original proof.

9                     Sections 263A and 263B of the Bankruptcy Act provide as follows:

“263A

A person who wilfully makes a false statement in an affidavit to be used for the purposes of this Act is guilty of an offence and is punishable –

(a)       upon summary conviction – by a fine not exceeding $200, or imprisonment for a period not exceeding 6 months, or both; or

(b)       upon conviction on indictment – by imprisonment for a period not exceeding 4 years.”

“263B

A person shall not –

(a)       make a false or misleading statement in a proof debt lodged with a trustee under this Act; or

(b)       lodge with a trustee under this Act, a proof of debt which is false or misleading in any material particular. 

            Penalty: $1,000 or imprisonment for 6 months, or both.”

10                  Ms Williams complains that the Trustee has taken no steps to initiate prosecution of any of the petitioners under either section 263A or section 263B.  She says that if the Wiggins had been faced with prosecution they might have withdrawn their claim altogether, although she is not certain that that would necessarily be so.  There is no specific evidence before me from which such a conclusion could be drawn.  The assertion is based solely on inference.

11                  It is not uncommon for the amount claimed in an affidavit of debt in support of a creditor's petition to differ from the proof of debts initially lodged.  Creditors sometimes wrongly estimate their debt and interest calculations.  The fact that there was a discrepancy shown later by the ultimate decision on the proofs of debt, did not in any way hinder the Trustee in the administration of the bankrupt estates.  It does not appear to have prejudiced the bankrupts in any way. 

12                  It may be that had a prosecution been launched against the Petitioners, it might have succeeded.  That is not something about which I can form any useful conclusion.  It would be purely speculative to do so.  It is significant that section 263A is concerned with a person who wilfully makes a false statement.  I have not been taken to anything other than material from which inferences might be drawn, that suggests that the Trustee had material before him from which he could conclude that any of the Petitioners had made a wilfully false statement in the affidavit in support of the petition. 

13                  While there is no express reference to the wilfulness of a false statement in section 263B, it must be construed as requiring some mental element on the part of an accused person.  In any event, while I have not had argument on that question, it appears to me that before a trustee could possibly have any basis for initiating action that might lead to a prosecution for contravention of section 263B, the trustee must have some evidence that a false or misleading statement was made knowingly or recklessly.  I do not consider that there is any material before me from which a conclusion should be drawn that the Trustee knew, or ought to have known, that a false or misleading statement had been made knowingly in the proof of debt. 

14                  The machinery of the law with respect to prosecutions for criminal offences has changed markedly over the last 100 years or so.  Prosecutions for criminal proceedings are now invariably brought by statutory authorities or government agencies established for that purpose.  Private prosecutions for criminal offences are rare.  Private citizens of course should lend their aid to prosecuting authorities by telling them that offences have been committed and by giving evidence or otherwise by way of assistance in the prosecution: see Re PT Garuda Indonesia Ltd; Ex parte Grellman (1994) 120 ALR 641 at 654. 

15                  Thus the trustee, as a citizen, albeit an official citizen, may well have a duty, where criminal conduct has come to his attention, to report that conduct to the authorities.  Similarly a bankrupt to whose attention such conduct came would have a similar duty to report the matter to the authorities.  The appropriate authority so far as offences under the Bankruptcy Act are concerned would probably be the Commonwealth Director of Public Prosecutions.  The precise identity of the authorities is not really to the point so far as the matter before me is concerned.

16                  Even if the material would justify any citizen referring the conduct to which I have referred for prosecution, it does not appear to me to be a matter about which any complaint could be made by the bankrupts against the Trustee in this case. 

MAKING AND INITIALLING ALTERATIONS TO THE PROOF OF DEBT lodged on behalf of the petitioners, which is annexure B to the affidavit of Kevin Wiggins sworn 4 May 2000

17                  As I have already said, there is some obscurity concerning the form of the proof of debt on the evidence before me.  The copy of a proof of debt in evidence has both typescript and handwriting on it.  The typescript heading refers to “Patricia Lorraine Williams”.  The body of the proof of debt refers to “Patricia Lorraine Williams” and “Ernest Arthur Wilson”.  The heading includes the proceedings in relation to both Ms Williams and Mr Wilson.  The typescript in the heading that refers to Ms Williams and to her proceedings has been deleted, and Ernest Arthur Wilson has been inserted in handwriting.  In the body of the proof of debt, the words, "Patricia Lorraine Williams and," have been ruled through in handwriting. 

18                  The amount claimed is $38,228.71, and a detailed calculation of that amount, commencing with the principal sum of $35,000 and giving credit for payments and making debits for interest after each payment, follows.  The other handwritten alterations relate to the amount.  The figure $38,228.71 in the body of the proof of debt is scored through.  A figure of $18,379.40 has been written in, and then scored through and a figure of $19,328.93 has been written in.  There are some other alterations, as follows:  “red. per corro 23.2.89”.  The date of “23.2.89” is scored through and another date, “28.6.89”, has been written in.  In the foot of the proof of debt are boxes marked, “Office use only.”  The left box relevantly provides as follows:

19                  There is space for a date and signature of the trustee.  The first blank space has been completed in handwriting with the figure $18,379 and, opposite the notation "Ordinary", the figure of $18,379 has been inserted.  In the space for the date, the date “5.7.1989” has been inserted.  The two figures of $18,379 have then been scored through, in handwriting, and the figure $19,329 has been written in.  There is what appears to be a rubber stamp of a signature, representing that of the Trustee, together with some initials.

20                  It is those alterations that are the subject of the complaint.  It is clear enough what has happened.  In the calculation attached to the proof of debt, interest is calculated to 24 August 1985, which is described as "date of Act of Bankruptcy."  That is the date of the act of bankruptcy of Ms Williams.  On the assumption that this document is in fact the proof of debt in the estate of Mr Wilson, that date is incorrect.  After credit is given for the sum of $10,000 to which I have already referred, the correct calculation on the assumption that the act of bankruptcy was 24 August 1985, was the original figure of $18,379.40.  That is the figure for which proof should have been allowed in Ms Williams' estate. 

21                  However, the act of bankruptcy of Mr Wilson was somewhat later, and it is common ground that the calculation of interest on the basis of the correct date of the act of bankruptcy of Mr Wilson would produce the figure of $19,328.93.  The reference to correspondence of 23 February 1989 appears to be a reference to a letter of that date written by Mr Kevin Wiggins to the official receiver in bankruptcy, saying as follows:

“I am writing on behalf of my father, Mr Austin Wiggins who has suffered a stroke, and as I have power of attorney I wish to advise you that he agrees to reduce to claim by $10,000.00 that is from $38,228.71 to $28, 228.71.  Please find enclosed copy of General Power of Attorney.”

22                  On 9 August 1993 the Official Receiver wrote to Mr Wilson enclosing a copy of the calculation of the proof of debt as originally submitted by the creditor and saying as follows:

“The principal amount of $35,000 was later reduced to $25,000 by the creditor as an offset of $10,000 claimed by you for painting costs. 

The re-calculation of the claim results in an amount of $19,328.93 provable in the estate as shown in the attachment Marked ‘A’.”

The attachment was a copy of the interest calculation on which handwritten calculations had been added, resulting in the figure of $19,328.93. 

23                  Section 84 of the Bankruptcy Act provides that a creditor who desires to prove a debt in a bankruptcy must lodge or cause to be lodged with the trustee a proof of debt in accordance with that section.

Section 84(2) then says:

“A proof of debt:

(a) shall set out particulars of the debt;

(b) shall be in accordance with the approved form.

(c) shall specify the vouchers, if any, by which the debt can be substantiated; and

(d) shall state whether or not the creditor is a secured creditor.”

Under section 84(3) the trustee may require that all of the matters or some of the matters contained in a proof of debt be verified by a statutory declaration.

24                  Section 102(1) provides as follows:

“The trustee shall examine each proof of debt and the grounds of the debt sought to be proved and, subject to the power of the Court to extend the time, shall, not later than 14 days after the expiration of the period specified in the notice of intention to declare a divided as the period within which creditors may lodge their proofs of debt, either:

(a) admit the proof of debt in whole;

(b) admit it in part and reject it in part;

(c) reject it in whole; or

(d) require further evidence in support of it.”

25                  A statement of receipts and disbursements in respect of the two estates indicates that a dividend in the sum of $3676 has been paid from each estate.  That dividend was based on a debt due to the Wiggins of $19,329 in the estate of Ms Williams and $19,328 in the estate of Mr Wilson.  So far as the present complaint is concerned there is no assertion that the amount paid from Ms William’s estate was the wrong figure, although prima facie it appears that it was based on a miscalculation.  It may be that some adjustment needs to be made in that regard.  However, the complaint is that the dividend in respect of Mr Wilson's estate has been calculated on the wrong figure.  That seems to me to be a misconception.

26                  The proof of debt, as I have said, claimed $38,000.  The amount that has been allowed is $19,328.  The only conclusion I can draw from the documents is that the Trustee has admitted the proof in part and rejected it in part.  It is not entirely clear when the notes and alterations made on the proof of debt were made.  That does not appear to me to be of great significance.  In the absence of anything further, I would construe the handwriting on the copy of the proof of debt in evidence as the calculations of the Trustee of the amount for which proof should be allowed in favour of the Wiggins.  I do not regard the corrections as being indicative of an intention to falsify the document.  They are no more than the working notes of the Trustee in arriving at the correct figure. 

27                  No suggestion is made that the figure of $19,329 is anything other than the correct figure.  The real complaint, as I have said, is that the creditors erroneously made their calculation on the basis of an act of bankruptcy at 24 August 1985 which of course is the date of the commencement of bankruptcy so far as Ms Williams was concerned, but not Mr Wilson.  In the circumstances I do not consider that any complaint is made out under this head.

FAILURE TO NOTIFY THE BANKRUPTS OF A REQUEST MADE ON BEHALF OF THE PETITIONERS IN OR ABOUT 1989 OR 1990 TO WITHDRAW THEIR PROOF OF DEBT; and

ADVISING THE PETITIONERS IN OR ABOUT 1989 or 1990 THAT IT WAS NOT OPEN TO THEM TO WITHDRAW THEIR PROOF OF DEBT

28                  This complaint arises out of evidence in an affidavit sworn by Mr Kevin Austin Wiggins on 19 November 1999.  In that affidavit, Mr Wiggins said as follows:

“It is true that at one stage I spoke to Jim Garrett, an Officer of the Office [sic] Trustee's Office about whether it was possible to withdraw the Proof of Debt Claim.  I accepted Mr Garrett's advice that the case had proceeded too far and that there were other creditors involved.  I did not give Jim Garrett any formal or direction instructions to withdraw the claim against the Bankrupts.” 

29                  The substance of those assertions also appears in a letter of 11 November 1999 from Marriott and Oliver, solicitors, who were then acting for the Petitioners.  The letter was written to the Official Receiver and contains the following paragraph:

“The family has accepted that the amount of the original claim is inaccurate.  The inaccuracy of the original claim was not the reason that the family were considering withdrawing their proof of debt.  At the time that Kevin Wiggins spoke to Jim Garrett it was merely an inquiry as to whether it was possible to withdraw the claim.  Kevin Wiggins accepted Mr Garret's [sic] advice that the case had proceeded too far and there was [sic] other creditors involved.  Kevin Wiggins accepted the advice of Jim Garrett and gave no formal instructions for the withdrawal of the claim.”

The complaint is that, by giving such advice as is referred to by Mr Wiggins, the Trustee was in fact giving false and misleading information to the Petitioners.  

30                  That is not how I read Mr Wiggins’ affidavit.  I would have understood Mr Wiggins’ affidavit as saying that he made an approach to the Official Trustee's Office to see whether it would be possible for the Petitioners claim generally to be withdrawn, with the intention that the bankruptcy might come to an end.  That indeed was part of the claim that has been made on behalf of Ms Williams and Mr Wilson in the past.  The response that Mr Garrett appears to have given was an indication that withdrawal of the proof of debt on behalf of the Petitioners would not bring the matter to an end because other creditors were involved. 

31                  At that stage, a proof of debt had been lodged by Andrew Dederer in late 1988 although it was withdrawn in January 1989.  Further, a proof of debt had been lodged by Welona Pty Limited (“Welona”) on 10 August 1988, although that proof of debt was not admitted until 1991.  Nevertheless it was correct to say, at the end of 1988 and during 1989, that other creditors were involved in the estates. 

32                  In any event, Mr Garrett was not given any formal or direct instructions on behalf of the Petitioners to withdraw the claim against Ms Williams and Mr Wilson.  In the circumstances I do not consider that there was any duty imposed upon the Trustee to notify Ms Williams and Mr Wilson of the inquiry that had been made.  If all that was being asked on behalf of the Petitioners is whether the bankruptcy could be brought to an end, the response was a fair one.  The circumstances did not give rise to any duty on the part of the Trustee to communicate in any formal sense with the bankrupts. It is clear that no formal request was given.  I do not consider that any complaint under this heading is made out.

INVITING BOTH MR ANDREW DEDERER And the nsw bookmakers co-operative In 1988 to lodge a proof of debt in the estate of mr wilson; and

inviting the nsw bookmakers co-Operative in 1992 to lodge a proof of debt in the estate of mr wilson

33                  On 10 July 1986 Marshall Marks, solicitors, wrote to the Official Receivers Office.  The letter was headed, "Ernest Arthur Wilson – No. 426 of 1986 Dederer and N.S.W. Bookmakers Co-operative Society Limited."  The letter said as follows:

“We act in connection with the recovery of moneys due by the abovenamed debtor pursuant to a judgment of the District Court made on 8th September, 1983 in favour of Andrew Dederer. 

A Proof of Debt will, in due course, be lodged in the bankruptcy.  In the meantime, we shall be pleased if you would note the interest of our client and advise us if it is anticipated that a dividend will be paid in the bankruptcy.”

34                  On 15 July 1988, the Official Receiver, on behalf of the Official Trustee, sent out notices to creditors of intention to declare a dividend.  Notices were addressed to both Mr Andrew Dederer, and NSW Bookmakers Co-operative Society Limited (“the Bookmakers Society”).  Each was addressed to those recipients, care of Marshall Marks, solicitors.  The notice relevantly said:

“TAKE NOTICE that I… Official Receiver on behalf of the Official Trustee in Bankruptcy, trustee of the property of Ernest Arthur Wilson, a bankrupt intend to declare a dividend in this matter.  It appears you may be a creditor of the estate, but you have not lodged any proof of debt.  If you wish your debt to be considered for inclusion in this dividend, you must lodge your proof of debt with me on or before the 12th August, 1988.”

35                  It is clear that there was some doubt in the office of the Official Receiver as to the identity of the creditor referred to in Marshall Marks' letter of 10 July 1986.  It also appears that there was some doubt in the mind of Marshall Marks as to the identity of the creditor for whom they were acting.  On 11 August 1988, Marshall Marks wrote to the Official Receiver, referring to the notice of intention to declare a dividend, and enclosing a proof of debt.  The letter was headed, "NSW Bookmakers Co-operative Society Limited, Ernest Arthur Wilson."  The proof of debt that was enclosed with that letter was dated 8 August 1988, and asserted that:

“Ernest Arthur Wilson was at the date on which he became a bankrupt, namely 23rd day of April 1986, and still is, justly and truly indebted to Andrew Dederer, care of Marshall Marks, solicitors, in the sum of $16,494.57, in accordance with the particulars specified in the judgment annexed hereto.”

36                  No proof of debt was received in the name of the Bookmakers Society.  On 16 August 1988, the Official Receiver wrote to Mr Wilson, enclosing copies of proofs of debt lodged by Welona, and by Andrew Dederer.  The letter relevantly said:

“Would you also provide me with your comments in respect of the proof of debt lodged by Mr. Dederer, as I noted that this creditor was not disclosed in your statement of affairs.”

37                  On 17 January 1989, a letter was received by the Official Receivers Office from Mr Dederer, saying:

“I Andy Dederer make no further claim on the estate of Ernest Arthur Wilson.

The claim of $16,496 has been settled.”

38                  On 10 April 1992, the Official Receiver’s Office dispatched a further notice to creditors of intention to declare dividend.  The notice was dispatched to a number of creditors, including the Bookmakers Society.  It appears that none was addressed to Mr Dederer.  The notice was in the following form, relevantly:

“Take notice that the Official Receiver, on behalf of the Official Trustee in Bankruptcy, trustee of the property of Ernest Arthur Wilson… intends to declare a dividend in this matter.  It appears you may be a creditor of the estate but you have not lodged any proof of debt.  If you wish your debt to be considered for inclusion in this dividend, you must lodge your proof of debt on or before the 8th May, 1992.”

39                  In response to the invitation of 10 April 1992, the solicitors for the Bookmakers Society wrote on 7 May 1992, referring to the notice to creditors of intention to declare a dividend, and enclosed a proof of debt on behalf of the Bookmakers Society.  That proof of debt was for a sum of $11,700 and was dated 7 May 1992.  The statement of account that was attached to the proof of debt was in the following terms:

“Judgment obtained in proceedings No 2164 of 1981 in the District Court of New South Wales at Newcastle, by William Andrew Dederer for the sum of $9,750.00 with interest of $1,950.00 which judgment debt was assigned to NSW Bookmakers Co-operative Society Limited on 1 January 1986.”

That proof of debt was admitted by the Trustee. 

40                  On 2 March 2000 I dismissed an application by Ms Williams as executor of Mr Wilson's estate to expunge the proof of debt of the Bookmakers Society: see Wilson v Official Trustee in Bankruptcy [2000] FCA 282; (2000) 97 FCR 196; (2000) 170 ALR 430.  In the course of deciding the question that arose in those proceedings, I examined some of the circumstances relating to the assignment of debt by Mr Dederer to the Bookmakers Society.  That question is not in issue here.  The only question is whether there was impropriety on the part of the Trustee in sending out the two forms of notice of intention to declare a dividend in 1988 and sending out a further notice in 1992.  Neither of these notices can be properly characterised as an invitation.  They appear to me to be no more than the fulfilment by the Trustee of his duty to make inquiry such as would satisfy him that he has received all proofs of debt prior to declaring a dividend.

41                  The notices do no more than state to the recipients that if they wish their debts to be considered for inclusion they must lodge a proof of debt within the specified time.  I do not consider that there is any basis for any charge of impropriety.  I do not consider that any complaint under these heads should succeed.

THE CHANGING IN THE COURSE OF THE HEARING ON 2 MARCH 2000, of THE TRUSTEE’S STANCE AS TO THE EXISTENCE OF TWO PROOFS OF DEBT LODGED BY THE NSW BOOKMAKERS CO-OPERATIVE

42                  This complaint is related to the two matters that I have just dealt with.  In the course of the hearing of the proceeding that I decided on 2 March 2000 there was initially no concession that the proof of debt in the name of Mr Dederer had been withdrawn.  Counsel then appearing for the Bookmakers Society made a submission that was capable of being interpreted as meaning that there were two proofs of debt lodged in respect of the same debt, being the proof of debt lodged in the name of Mr Dederer and the proof of debt lodged in the name of the Bookmakers Society.

43                  That may have raised a question of whether or not there had been an assignment by the creditor after lodging a proof of debt.  Ms Williams had foreshadowed her intention to rely on two decisions relating to that question: Re Barry (1930) 2 ABC 85 and Re Gill; Ex parte Official Receiver (1964) 6 FLR 273.  In the course of argument, counsel for the Bookmakers Society finally indicated that he was happy to accept that the proof of debt in the name of Mr Dederer had been withdrawn.  It was therefore not necessary for me to consider the application of those authorities to the circumstances then before me. 

44                  The concession that was finally made by counsel for the Bookmakers Society was clearly correctly made.  There was clear evidence that the proof of debt in the name of Mr Dederer had been withdrawn.  There was of course considerable doubt as to whether that withdrawal had been effected with the authority of the Bookmakers Society, which by that stage had become the beneficial owner of the debt.

45                  As I have already indicated, there was some confusion on the part of the solicitors acting for the Bookmakers Society, and possibly on the part of the Official Trustee induced by the solicitor's confusion, as to the correct name in which the proof of debt should be lodged.  In any event, for the reasons which I indicated on 2 March 2000, I concluded that the proof of debt in the name of the Bookmakers Society was properly admitted. 

46                  The Official Trustee did not play a significant part in the hearing on 2 March.  The solicitor for the Official Trustee, when invited, did not wish to add anything.  That invitation was given after counsel for the Bookmakers Society had made the concession to which I have just referred.  That is to say, the Trustee must be taken to have accepted the concession.  Ms Williams complains that for some considerable time before 2 March 2000 the Official Trustee had declined to accept that the proof of debt in the name of Mr Dederer had been withdrawn.  Accordingly, it was said, the Trustee was guilty of a volte-face when he accepted that the Dederer proof had been withdrawn and that the only proof of debt that was relevant was that in the name of the Bookmakers Society. 

47                  Ms Williams says that, because of the volte-face, she lost the benefit of the opportunity of my deciding the case in a different way.  I am not satisfied that that was a possibility.  As I have said, there was clear evidence that the proof of debt in the name of Dederer had been withdrawn.  It was clear on the evidence before me that there was only one proof of debt that was current at the time.  The confusion in thinking on the part of counsel for the Bookmakers Society really has nothing to do with that question.  I do not consider that, in so far as there was a change in stance adopted by the Trustee, that change in stance in any way reflects on the propriety of the Trustee's conduct.  It was a change to accept what the evidence clearly showed.  I do not consider that any complaint under this head should succeed.

Paying out of each of the estates legal fees in respect of proceedings before Sweeney J AND the Full Court in excess of the fees that would have been payable had the trustee merely submitted in those proceedings to such orders the court might make other than AN order as to costs

48                  As I have said, on 10 August 1988, Welona lodged a proof of debt in each of the bankrupt estates.  The proof related to the cost of repairs and restoration to the Gardiners Inn Hotel in Blackheath, in the sum of $151,856.57.  After receiving technical advice from a building consultant, the Trustee rejected the claims to the extent of $55,162.18 and the claim was admitted to rank for dividend in the sum of $96,694.39.

49                  On 12 April 1991 Mr Wilson and Ms Williams, after being informed of the Trustee's decision, filed an application under section 99 of the Bankruptcy Act.  Section 99(1) provides as follows:

“Where a creditor or the bankrupt considers that, by virtue of a decision of the trustee under subsection 102(1), (3) or (4), a proof of debt has been wrongly admitted, he or she may apply to the Court for an order that the proof be expunged or that the amount of the admitted debt be reduced, and the Court may make an order accordingly.”

I have already referred to the terms of section 102. 

50                  On 15 January 1992, Welona filed a notice of intention to appear at the hearing of the application filed by Mr Wilson and Ms Williams.  In addition on 24 February 1992, Welona itself filed an application under section 99 in respect of the Trustee's reduction of the proof of debt.  The Trustee was named as first respondent and Mr Wilson and Ms Williams were named as second respondent.  On 11 May 1992 Hill J ordered that the two matters be heard together and that evidence in one was to be evidence in the other.  The proceedings were set down for hearing commencing on 6 October 1992. 

51                  Mr Cruickshanks in his affidavit of 17 August 2000 says that the Trustee played an active role in the proceedings, which he characterised as a defence against the attack by both the bankrupts and the creditor on the Trustee's decision to reject part of Welona's claim and admit part of it.  The applications were heard by Sweeney J who gave substantive judgment on 10 December 1992.  The effect of Sweeney J’s determination of the substantive matter was to increase the amount by which Welona's claim would be admitted to $140,534.  In his reasons of 10 December 1992 Sweeney J summarised arguments that had been put concerning costs.  Sweeney J recorded that counsel for the Trustee sought an order that his client's costs be paid by the unsuccessful party or parties.  Sweeney J recorded counsel for Ms Williams and Mr Wilson as making the following submission:

“With regard to the costs of the bankrupts and the creditor, the Court ought to exercise its discretion according to the following factors;

-           whether the proof of debt is ultimately increased or reduced;

-           the size and number of items challenged by the parties

As to the Trustee's costs the Court is asked to follow the usual course which is understood to involve payment from the estate.  If the court wishes to attribute the Trustee's costs to parties then the above factors should also apply.”

After summarising Welona's submissions Sweeney J said:

“Bearing in mind the findings made and the history of the case I am of the opinion that Welona's costs should be paid by Mr Wilson and Ms Williams personally.  The Trustees [sic] costs should also be paid by Mr Wilson and Ms Williams personally.”

52                  On appeal to the Full Court, the question of His Honour's orders for costs was ventilated.  The Full Court recorded (Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585 at 602) that, throughout the trial and the appeal, both Welona and the Trustee were represented by counsel.  His Honour had ordered Mr Wilson and Ms Williams to pay the costs of both the Trustee and Welona.  They were thus liable for a double set of costs, since each of the respondents to the application had been separately represented.  The Full Court understood the concern of the Trustee about a matter in which a proof of debt disallowed by him is in question. 

53                  On the other hand their Honours considered that the case was one where it must have been apparent at all material times that there was to be a contradictor other than the Trustee, who would take an active part in the proceedings.  The opposition to Mr Wilson's case by Welona ensured that the dispute, which concerned Welona rather than the Trustee, was fully ventilated.  In those circumstances the Full Court did not think that it was correct for there to be two sets of costs awarded against Mr Wilson and Ms Williams.  It was a case in which, according to the Full Court, the Trustee should have entered a submitting appearance.  The Full Court considered that the Trustee's costs at first instance should have been limited to the costs that would have been payable to a party who has submitted to such order as the Court thinks fit to make. 

54                  Similarly, the Full Court considered that the Trustee should have his costs of the appeal on the basis of the costs payable to a submitting respondent.  The Full Court therefore varied the orders made by Sweeney J by making an order in the following terms:

“Subject to the right of the trustee to be indemnified for its costs out of the assets of the bankrupt estates, the costs of Welona Pty Ltd and the Official Trustee in Bankruptcy be paid by Mr Wilson and Ms Williams personally provided that the costs to be recovered by the trustee be limited to the costs to which the trustee would have been entitled as a submitting respondent.”

In relation to the costs of the appeal the Full Court made the following order:

“4.  Subject to the right of the trustee to be indemnified for its costs out of the assets of the bankrupt estates, the costs of the appeal and of the two notices of motion of Welona Pty Ltd and the Official Trustee in Bankruptcy be paid by Mr Wilson and Ms Williams personally provided that the costs to be recovered by the trustee be limited to the costs to which the trustee would have been entitled as a submitting respondent.”

55                  I do not consider that the orders of the Full Court resolved the question before me, although both Ms Williams and the Trustee claimed some comfort from the orders.  Ms Williams contended, in effect, that the Full Court had decided that the Trustee was not entitled to be indemnified out of the estate except to the extent of costs that would have been incurred by a submitting appearance.  On the other hand the Trustee referred to the reservation made in express terms by the Full Court to the entitlement of the Trustee to be indemnified out of the estates. 

56                  A trustee in Bankruptcy is governed by the general law relating to trustees except in so far as the position of a trustee is modified by the Bankruptcy Act or the rules and regulations made under that Act.  The Act confers no right on a trustee to be reimbursed in respect of the costs, charges or expenses incurred in the administration of the estate.  The trustee’s right to indemnity is provided under the general law.  Under that law a trustee is entitled, as of right, to a full indemnity under the trust estate against all costs, charges and expenses properly incurred by the trustee – see Adsett v Berlouis (1992) 37 FCR 201 at 210. 

57                  The expenses that a trustee might incur in the present context are of two kinds.  First the trustee might incur a liability pursuant to an order of the Court.  That is, if the trustee is unsuccessful in some proceeding he might be ordered to pay the costs of the successful party.  However, the trustee would not be personally liable to that party.  He would only be liable to the extent of the assets available in the estate being administered.  On the other hand he would be entitled to be indemnified out of the estate to that extent. 

58                  The second kind of expense that would be incurred by a trustee in the present context is the liability that he would incur to his own legal advisers in respect of the conduct of proceedings.  That is an additional expense over and above any order made against the trustee in favour of another party.  Of course, if the trustee were successful in proceedings he may well receive the benefit of an order for costs against the unsuccessful party.  To the extent that the trustee recovers anything under such an order from the unsuccessful party, the amount would be for the benefit of the estate, since the trustee would be entitled to an indemnity in respect of the liabilities that he properly incurred to his own legal advisers. 

59                  That is to say, there will clearly be duplication.  An order for party/party costs will not involve a full reimbursement to the client of the costs actually incurred.  Thus if the trustee receives the benefit of a party/party order he will recover from the unsuccessful party only part of the amount that he will actually have to pay out from the estate to his legal advisers.  The amounts that the trustee recovers from the other party will overlap with the amounts that the trustee must pay to his legal advisers and can recover from the estate.  I mention the duplication because of its relevance to another question that has been raised by Ms Williams.

60                  Whether or not a trustee would be entitled to be indemnified out of the estate in respect of particular legal expenses incurred to his legal adviser will depend upon whether those expenses had been properly incurred.  If an expense is one prudently and reasonably incurred in the discharge of the trustee's proper duties, then the right under the general law will apply and he will be indemnified out of the trust estate.  If the expense is not so incurred or is unreasonable or unnecessary, then there will be no right under the general law to indemnity because the expense was not properly incurred.  Where the line is drawn between an expense properly incurred and one not properly incurred is to be determined on the facts of the particular case and in the exercise of judgment – see Adsett v Berlouis (above) at 212.

61                  The precise nature of the part played by the Trustee in the proceedings relating to the Welona proof of debt is not entirely clear.  I have some evidence before me from the observations made by the Full Court.  On 12 March 1999 Branson J heard an earlier application under section 178 brought by Ms Williams and Mr Wilson.  Her Honour referred to the proceedings before Sweeney J and to a statement apparently made by Mr Hadley, counsel for Ms Williams and Mr Wilson, at the commencement of the hearing.  The transcript records that Mr Hadley said, in response to a question from his Honour as to who would begin:

“We have had some discussion before your Honour came on the bench and I gather that the Official Trustee's attitude was that it would lay before the court the information on which it had acted and then make the witnesses available for examination by either party.”

Her Honour went on to observe that it could not be fairly suggested that counsel for Ms Williams and Mr Wilson did not understand that it was his role and not that of counsel for the Trustee to put their case before the court.  Her Honour considered that the real disputants before Sweeney J were Ms Williams and Mr Wilson on the one hand, who contended that the Trustee had admitted Welona's proof of debt in an amount that was too high, and Welona, on the other hand, which contended that the Trustee had admitted its proof of debt in an amount that was too low.

62                  Those observations certainly indicate the limited nature of the part that should be played by a trustee in such a proceeding.  Counsel for the Trustee before me sought to justify the extent of the Trustee's participation in the proceedings before Sweeney J on two general bases.  First it was said that there were allegations made against the Trustee personally in relation to his conduct of the administration.  The way in which those allegations became relevant is apparent from the reasons of Branson J and it is not necessary for me to examine them.  The point is that they were relevant to the issue before Sweeney J. 

63                  However, the question of whether the Trustee had acted with propriety was not of itself an issue before Sweeney J.  There would therefore be no justification for the Trustee incurring costs to defend allegations that were not formally made against him in those proceedings.  It would of course be a different matter were allegations made against the Trustee in an application under section 178.  That was not the nature of the proceedings before Sweeney J.

64                  The other basis on which counsel for the Trustee sought to justify full participation was that the Trustee was representing other creditors.  In the light of the observations made by the Full Court and by Branson J, that is not a proper justification.  The very point of Branson J’s observations is that there was an appropriate contradictor to the claims made on behalf of the bankrupts on the one hand and the claims made on behalf of Welona on the other.  Accordingly, it seems to me, on the material that I have before me, that the level of participation by the Trustee in the proceedings should have been limited.  In a sense the participation of the Trustee should have been that of a submitting party.  However, the role to be played by a trustee as a submitting party in a proceeding under section 99 may well be considerably greater than merely filing a submitting appearance and doing nothing more.

65                  The issue before the Court was whether or not the Trustee's decision in relation to Welona’s proof of debt was correct or otherwise.  The Court may well require some assistance from the Trustee as to the material that was before the Trustee in relation to the decision.  On the other hand, the Court is not limited to evidence that was before the Trustee.  The hearing is de novo.  That is to say it is up to the two contradictors to adduce all of the evidence that is appropriate.  If a trustee were concerned that one party was not in a position to advance arguments that were available for the benefit of the creditors generally, or chose for whatever reason not to, it may be appropriate for the trustee to participate to a greater extent than would ordinarily be required.  There is no suggestion that that was the case here.

66                  The Trustee’s solicitor/client costs for work done up to the appeal by Ms Williams and Mr Wilson to the Full Court were taxed and allowed at $30,417.73.  In addition, a solicitor/client bill of costs of the Official Receiver in respect of the appeal has been prepared showing total fees of $28.583.20.  Both bills include quite substantial disbursements for counsel in relation the two hearings or the two sets of proceedings.  I am not in a position to form any view as to whether the two bills of costs, totalling in aggregate nearly $60,000, represent expenses that were prudently and reasonably incurred in the discharge of the Trustee’s proper duties.

67                  In my view the role of the Trustee in the proceedings should have been limited to ensuring that all relevant evidence was available and that all appropriate arguments were going to be advanced for the benefit of the estates.  That would entail something more than merely filing a submitting appearance and nothing more.  On the other hand, it may be that so long as reasonable opportunity was afforded to the Trustee, with the benefit of legal advice, to consider the evidence that was to be relied on by both parties and the arguments to be advanced, that is the extent of the necessary involvement of the Trustee.  Some presence in the proceedings may be required so that the Court could be informed of the Trustee’s position.  For example, it may be that the Court would require to be satisfied that the Trustee had taken the view that all appropriate arguments had been advanced on behalf of the estates.  On the other hand, there would not normally be any need for counsel or solicitor to participate in the substance of the proceedings at first instance. 

68                  When the notice of appeal was filed, it may have been reasonable for the Trustee to take advice from his legal advisers as to the nature of the appeal and what part should be played by him.  There would be no need for the Trustee to be involved in the substance of the appeal, except in so far as the appeal affected any interest of the Trustee, for example, as to his costs.

69                  I am not in a position to form any view as to whether any part of the costs referred to in the two bills goes beyond the involvement that I have briefly described.  I consider, therefore, that the appropriate course is to refer the two bills of costs to a taxing officer, with a view to obtaining a report from the taxing officer as to whether any of the items shown in the bill are for work that goes beyond the involvement that I have briefly described.  Upon receipt of such a report I will then be in a better position to be able to determine whether there is any substance in the complaint made on behalf of the bankrupts. 

PAYING IN 1993, 1994 and 1995 from each of the estates moneys totalling approximately $6500 in respect of legal fees that had already been paid from the estates

70                  I indicated earlier that there was another matter raised by Ms Williams concerning alleged duplication of claims.  The allegation is that in 1993, 1994, 1995 some $6500 was paid from the estates in respect of legal fees that had already been paid from the estate.  Ms Williams has indicated that she is not in a position to deal with those matters in full.  The parties intimated that it may be a matter that could be resolved by a taxing officer.  It would be appropriate, if there is an issue in relation to alleged duplication of legal fees, that the assistance of the taxing officer be called in aid of resolution of that question.

Failure BY THE TRUSTEE to seek an order under section 53 of the Bankruptcy Act THAT the proceedings in respect of each of the bankrupts be consolidated

71                  Section 53 provides as follows:

“(1)     Where 2 or more members of a partnership or 2 or more joint debtors have become bankrupt, the Court may consolidate the proceedings upon such terms as it thinks fit.

(2)       Where the Court makes an order under subsection (1), section 110 applies in the administration under this Act of all the estates to which the order relates.”

Section 110 provides as follows:

“(1) In the case of joint debtors, whether partners or not, the joint estate shall be applied in the first instance in payment of their joint debts, and the separate estate of each joint debtor shall be applied in the first instance in payment of his or her separate debts. 

(2) If there is a surplus in the case of any of the separate estates, it should be dealt with as part of the joint estate and if there is a surplus in the case of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each joint debtor in the joint estate.”

72                  The assets of the bankrupts consisted principally of two properties.  In respect of one of the properties, each of the bankrupts had an undivided one fourth interest.  In relation to the other property they appeared to have been joint tenants.  They were jointly liable to the Wiggins in respect of the judgment debt that founded the sequestration orders.  They also had a joint responsibility to Welona.  On the other hand Mr Wilson had a separate liability to the Bookmakers Society.

73                  Either the Trustee or the bankrupts would have standing under section 53 to make an application to the Court for an order for consolidation.  It is a matter of judgment as to whether such an order should be sought.  There is no evidence before me that the bankrupts requested the Trustee to make an application.  There is certainly no evidence that the bankrupts themselves desired to make any application at the time.  It may be that had the estates been consolidated fees payable to the Trustee might have been reduced.  However, as I have said, it is a matter of judgment.  The dispute concerning the Bookmakers Society has taken some time to resolve.  It could well be that there would be ground for complaint on behalf of the estate of Ms Williams if there had been consolidation and costs incurred in the defence of that claim were paid from her estate.  I do not consider on the material before me that the failure by the Trustee to make any application under section 53 is a ground for complaint.

Charging fees in 1993 and subsequent years at the rates that were prescribed in 1993 rather than at the rates that were current at the date of the receipt of funds by the trustee AND the dates of the declaration of dividends prior to 1993

74                  This question is thrown up by section 163 of the Bankruptcy Act.  In its current form, section 163(1) provides that the Official Trustee is to be remunerated as prescribed by the Bankruptcy Regulations (“the Regulations”).  The section is in that form following amendments made in 1996 and 1997.  In 1992 section 163 provided as follows:

“(1) Where the Official Trustee is the trustee of the estate of the bankrupt the Official Trustee shall be remunerated as prescribed.”

75                  Rules 179 to 182 dealt with the fees and percentages payable to the Official Trustee.  The rules were contained in Part XV of the Bankruptcy Rules 1966 (Cth) (“the Bankruptcy Rules”).  The Bankruptcy Rules have now been repealed and the function performed by Part XV is performed by Division 2 of Part 16 of the Regulations.  In particular, regulation 1607 deals with fees payable to the Official Trustee.

76                  The Trustee has, in the course of the administration of the estates, realised assets of the bankrupts.  In particular, a property situated at Berkeley Vale, in which each of the bankrupts had an undivided one fourth interest, was sold prior to 1993.  In 1994 Part XV of the Bankruptcy Rules was amended.  In particular, certain of the amounts and percentages referred to in Part XV were altered.  The Trustee has to date charged interim fees in respect of property realised being the Berkeley Vale property.  The fees have been calculated on the basis of Part XV as applicable following the 1994 amendments.

Rules 179 and 182 provided as follows:

“179(2) A fee is payable upon furnishing an account (not being an account in

respect of which a fee is payable under subrule (3)) to the Registrar in

accordance with paragraph 175 (1) (a) of the Act or subsection 211 (1) of

the Act.

…………………………

179(4) The fee payable under subrule (2) or (3) upon furnishing an account in

respect of the estate of a bankrupt or deceased person or in respect of a

debtor is:

………………………

   (b)  if the prescribed amount in respect of the estate or debtor exceeds

        $50,000 but does not exceed $100,000 - a fee equal to the sum of

        $1,500 and an amount equal to 2 1/2 per centum of the amount by which

        the prescribed amounts exceeds $50,000; or

………………………

less the fee or the sum of the fees paid upon furnishing a previous account or previous accounts in respect of the estate or the debtor and less any fee paid by the Official Trustee in respect of the estate under rule 181.

………………………

182(2)  Where the Official Trustee:

   (a)  acts as trustee of the estate of a bankrupt or a deceased person in

        respect of whose estate an order for administration has been made

        under Part XI of the Act;

………………………

the Official Trustee is entitled to receive:

………………………

   (f)  if the prescribed amount in respect of the estate or the debtor

        exceeds $50,000 - a fee equal to the sum of $9,200 and an amount equal

        to 10% of the amount by which the prescribed amount exceeds $50,000.”

77                  For present purposes, the term "prescribed amount" means the total amount realised or brought to credit by the Official Trustee in the estate or in relation to the debtor as the case may be.  The amendments that were made in 1994 substituted $50,000 for the sum of $40,000 and substituted 10 per cent for the figure of 5 per cent.  Thus under the regime that was in force prior to 1994, the calculation would have involved a fixed fee in respect of the first $40,000 and a percentage of five per cent of the excess over $40,000.  Similar changes were made in respect of rule 179. 

78                  The fees to which the Official Trustee is entitled are as compensation for the work done in the administration of the estate.  It might be thought that it would be appropriate that the Official Trustee be remunerated according to scales of fees in force at the time when the work is performed.  The difficulty with that approach, where the scales are changed without any transitional provisions to cover the transitional period, is that the calculation of the fee can only be made when the amount realised is determined.  In the present case, while there was a realisation of the Berkeley Vale property or the interest of the bankrupts in the Berkeley Vale property to which I have referred, there were other assets in the form of the other parcel of land, which the bankrupts owned as joint tenants.  I am informed that that land was what realised until some time during 2000.  That is the only other asset to be realised.  On one view, therefore, it was not possible to calculate the fee in accordance with the regime that I have described until the amount realised by the sale of the second property was known. 

79                  The difficulties that arise from changes in the scale of fees were considered in Re Athanassopoulos (1982) 41 ALR 603.  Lockhart J concluded that the Official Trustee in that case had no right to a fee in his administration of the estate until he completed that administration.  Accordingly, he was entitled to payment of his fees for the whole of the work in the estate according to the new scale that had come into force in the interim – see pages 611 and 612.  Lockhart J reached that result with regret and considered that it was unjust.  His Honour observed that it was wrong that the Official Trustee be paid for work done by him otherwise than on the basis of the scale of fees in force at the time when the work was done.  His Honour observed that the difficulties arising from the scheme of the provisions call for urgent corrective action by the Australian government.  I am informed that no such action has been taken and that the same problem arises under the current regime.

80                  I am certainly not satisfied that Lockhart J’s decision is plainly wrong.  Accordingly I should follow it.  On that basis, the Trustee did not become entitled to any fee until, on one view, this year.  On another view, it may well be that he will not become entitled to a fee until the administration is complete.  In any event, the Trustee would not be limited to charging a fee at the scale that was applicable prior to 1994, simply because part of the proceeds of realisation were received prior to that date.  It follows, in my view, that this ground of complaint has not been established. 

81                  I should indicate that there does seem to be something wrong with the scheme of things.  It may be that the Official Trustee should endeavour to have the situation dealt with by the Parliament one way or the other.  If it be the fact, as I understand it is, that the problem adverted to by Lockhart J continues to arise, it would be highly desirable for the Regulations to be amended so as to reflect what might be thought to be a fair regime, namely, that the Official Trustee be remunerated for work carried in the realisation of assets according to scales that are in force at the time when the work is done.  By the same token, the Official Trustee would then be entitled to be remunerated from time to time as a particular part of the administration is completed, by the realisation of a particular asset.  The current scheme, strictly construed, operates unfairly in both ways.

Failure to take steps to recover from DCAM Real Estate Agency (“DCAM”) the sum of $2526.36 retained by DCAM from the proceeds of the sale of property of the bankrupts;

RepresenTING to the bankrupts that they would be joined as parties in proceedings brought by DCAM under section 104 of the Bankruptcy Act in circumstances where the bankrupts were not to be joined as parties; AND

Seeking and obtaining an order that the costs of the trustee of the proceedings under section 104 brought by DCAM be paid out of the estates of the bankrupts

82                  I now come to the final group of complaints.  The last three can be dealt with together since they all arise out of the same circumstances.

83                  On 29 July 1986 a proof of debt was lodged on behalf of Bradfield and Pritchard Real Estate Agents in the sum of $11,473.61.  The claim was for commission said to be payable to Bradfield and Pritchard on the sale of the property at Berkeley Vale.  The claim was made that an exclusive selling agency had been entered into on 15 October 1985 between Bradfield and Pritchard and the four owners of the property.

84                  On 4 November 1987, the solicitors acting for Bradfield and Pritchard wrote to the Official Receiver authorising the Official Receiver to reduce the claim by Bradfield and Pritchard to $6673.61.  The Trustee was asked to advise on the likelihood of that amount being received.  Bradfield and Pritchard were apparently asked to forward some evidence of their claim.  On 15 January 1988 Bradfield and Pritchard wrote to the Official Receiver enclosing copies of, "the only documentation that I received on settlement", together with a copy of a cheque for the sum of $2536.39.  The letter said that that was received, "in part payment of my selling commission".  The document that was enclosed was a letter from Westgarth Baldick solicitors addressed to William P O'Brien solicitors.  The letter referred to a transaction involving Finance Corporation of Australia Limited and Fagen Williams and Lawson.  The letter said as follows:

“Further to our letter dated 27th May we have now received advice from our client and the agent acting in respect of the sale that the purchaser has agreed with the concurrence of your clients to allow a further deduction of $8,000.00 on account the commission payable concurrently with settlement of the sale with a proportionate reduction in the amount of the mortgage pack in favour of the vendor.”

The effect of that letter is somewhat obscure, but it appears to have been taken by Bradfield and Pritchard as evidence of some arrangement concerning entitlement to a commission. 

85                  On 10 February 1989 the Trustee admitted Bradfield and Pritchard's claim to rank for dividend in the sum of $6874.  Subsequently, further correspondence took place between the bankrupts, the Trustee, the Trustee's solicitors and Bradfield and Pritchard and their solicitors, concerning the bankrupts' contention that the creditor did not have a provable debt.  As a result, on 16 May 1994, the Trustee issued to Bradfield and Pritchard a notice of rejection of the proof.  On 8 June 1994, Bradfield and Pritchard under its new name, DCAM Holdings Pty Limited, applied to the Court under section 104 of the Bankruptcy Act for review of the decision of the Trustee rejecting the proof of debt.  Upon being advised of the application, the solicitors for the bankrupts informed the Trustee that they were dissatisfied that, in the current action, the Trustee had engaged the same firm of solicitors and counsel who had represented the Trustee in the previous proceedings involving Welona.

86                  On 21 October 1994, the Official Receiver wrote to the bankrupts’ solicitors saying that the Official Receiver consented to leave being given to Ms Williams and Mr Wilson being joined as parties to the proceedings involving Bradfield and Pritchard and that, upon such leave being granted, the Official Trustee would assume the role of a submitting party.  On 8 November 1984, Sackville J granted leave to the bankrupts to file an application for leave to intervene in proceedings, which were fixed for hearing before Davies J.  On 18 November 1994, Davies J dismissed the application by Bradfield and Pritchard and ordered Bradfield and Pritchard to pay the Trustee's costs.  At the request of counsel for the Trustee, his Honour directed that the Trustee was entitled to be indemnified out of the estates on a solicitor/client basis in respect of the costs of acting in the proceedings.  Davies J ordered Bradfield and Pritchard to pay the Trustee's costs but that the interveners, Mr Wilson and Ms Williams, should pay their own costs.  The Trustee's costs were taxed at $3372 and payment was made of that sum by Bradfield and Pritchard on 21 August 1995.

87                  The first complaint in relation to Bradfield and Pritchard, is that the Trustee took inadequate steps to get in an asset of the estates, being the sum of $2526 that had been paid to Bradfield and Pritchard from the proceeds of the sale of the property.  On 14 September 1995 an officer of the Trustee made a note concerning that question as follows:

“I agree that there are doubts concerning the trustee's rights to recover the $2,600.00 from Mr Moses.  [the principal of Bradfield and Pritchard]  Apart from the issue of possibly being statute barred there is the issue of to whom is the money payable.  If I recall correctly the purchase and re-sale of the property was a joint venture of 4 parties, 2 of which were Mr Wilson and Ms Williams, therefore it would follow that the $2,600 was payable to joint venturers in the first instance and to be used to meet any liabilities of the joint venturer.  If there were no liabilities then the $2,600 could be distributed to the 4 joint venturers ie $650.00 each. 

I also agree that it would not be cost-effective to take any further action to recover $650.00 for each estate.  However given the history of the matter notify Mr Whitfield of the responses received from Mr Moses and that the O.T. considers that was not cost-effective to pursue the matter.  However if his clients want the O.T. to pursue the matter they will be required to provide the funds to cover the cost of such recovery proceedings.”

88                  On 24 June 1994, the Official Receiver had written to Whitfield saying:

“the proof of debt lodged by Bradfield and Pritchard was rejected by the Official Trustee and a request made for the refund of Commission received by him.  Whilst I have received a verbal advice that the creditor intends to appeal a rejection of the proof of debt, I am not aware whether an application has been lodged with the Federal Court.  There has been no response in respect of the refund of Commission.”

89                  Ms Williams has said from the bar table that, notwithstanding the observation made by the officer of the Official Trustee's office in that memorandum, she and Mr Wilson were entitled to the whole of the sum in question.  My difficulty is that I have no evidence at all concerning the circumstances in which the payment was made to Bradfield and Pritchard save as I have already set out.  It does not appear that the bankrupts were informed of the Trustee's decision that, if they wished steps to be taken, they would have to fund the costs themselves.  In practical terms, of course, they would have been unable to do so, having regard to their status.

90                  In all of the circumstances, I am not persuaded that the decision of the Trustee, not to pursue what was thought to be a minor amount is attended with any degree of criticism.  It appears that a letter was written to Mr Moses of Bradford and Pritchard who responded, indicating that he would not refund the amount and that he was entitled to be compensated for work that had been done by him.  Whether to pursue an amount such as that is a matter of judgment.  While there may be different views as to whether the amount is worth pursuing, I consider that the judgment is one which could reasonably be made by the Trustee in the circumstances.

91                  The complaint in relation to the joinder is difficult to follow.  The substance of the complaint seems to be that the bankrupts believed that they were going to be joined as parties and therefore retained counsel to act for them.  That belief was induced at least partly by the letter from the Official Receiver to the solicitors, confirming that the Official Trustee consented to their being given leave to be joined as parties.  However, when the matter was called on the hearing before Davies J, counsel for the Trustee raised a doubt as to whether or not the bankrupts had any standing to appear before the Court in a proceeding under section 104 of the Bankruptcy Act.

92                  Counsel said that a bankrupt, once a sequestration order has been made, has no right to participate in litigation against his creditor.  While under section 99 a bankrupt may challenge the decision of a trustee in relation to a proof of debt, there is no corresponding provision where the creditor challenges a trustee's decision.  Unlike section 99, there is no obligation to notify the bankrupt.  Counsel indicated if his Honour were content to permit the joinder of the bankrupts, the only problem that arose would be as to the role that the Trustee should take.  His Honour responded that, since the proof had been rejected, the Trustee had a duty on behalf of the creditors to defend that decision.  Accordingly, counsel for the Trustee appeared in a substantive fashion in the proceeding and counsel for the bankrupts was not called upon to participate.  It may well be that there was some misapprehension on the part of the bankrupts, occasioned by the letter from the Official Receiver.  Be that as it may, I do not consider that the conduct of the Official Receiver in writing the letter is such as to warrant any criticism.

93                  The claim in respect of the order for costs may also be as a result of a misconception on the part of Ms Williams.  It was quite unexceptional for the Trustee to be entitled to be indemnified out of the estate in respect of any costs incurred in the section 104 proceedings brought by Bradfield and Pritchard that it was unable to recover from the unsuccessful creditor.  Even if no order had been made by the Court, the Trustee would have been entitled to be indemnified from the estate in accordance with the principles to which I have already referred.  In the circumstances, no criticism can be directed to the Trustee in relation to this final matter. 

94                  In relation to a number of the matters dealt with today Ms Williams has been unsuccessful.  She may be successful in relation to others.  The appropriate order is that the applicants pay one half of the costs of the respondent up to the commencement of the hearing.  The applicants should pay the respondents costs of yesterday.  I will reserve the balance of the costs and stand the proceeding over until receipt of the report from a taxing officer.

Associate:

Dated:              14 September 2000