FEDERAL COURT OF AUSTRALIA

Tasman KB Pty Limited v Watkins [2004] FCA 1190

TASMAN KB PTY LIMITED v THOMAS DOUGLAS WATKINS

N 1313 of 2004

ALLSOP J

8 SEPTEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  Pursuant to section 50 of the Bankruptcy Act 1996, Schon Condon, a registered trustee, take control of the property of the respondent debtor, Thomas Douglas Watkins, until a sequestration order under section 43 of the Bankruptcy Act 1966 is made or until the disposition otherwise of the creditor’s petition herein.

2.                  The respondent debtor, Thomas Douglas Watkins, before 10 am on 15 September 2004, take all necessary and available steps including the granting of any necessary permissions to deliver to Schon Condon at Level 1, 34 Charles Street, Parramatta, NSW, 2150, all books, documents, papers and writings in his possession or power relating to his property and affairs.

3.                  The respondent debtor, Thomas Douglas Watkins, be restrained, without prior approval of the court, from paying, lending or depositing any monies with, or transferring or delivering any property to, any person, company or entity.

4.                  The respondent debtor, Thomas Douglas Watkins, be restrained without the prior approval of the Court, from transferring, sending, or taking moneys or other property out of Australia.

5.                  Without limitation of orders 3 and 4:

5.1              the respondent debtor, Thomas Douglas Watkins, be restrained either by himself or by his servants or agents from selling, mortgaging or otherwise dealing with or disposing of or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of his assets within the States of New South Wales, Victoria and Queensland and including, but not limited to the following properties:

(a)               the property known as 2A Constitution Court, Carlingford in the State of New South Wales being the land comprised in certificate of title folio identifier 501/227481;

(b)               the land comprised in certificate of title lot 392, survey plan 126913 and known as 10 Straite Drive, Robina, Queensland,

5.2              the respondent debtor, Thomas Douglas Watkins, be restrained by himself and by his servants or agents from withdrawing any monies from any accounts held with a bank or other financial institution including, but not limited to the following:

(a)               accounts held with Westpac Banking Corporation;

(b)               accounts held with National Australia Bank Limited;

(c)               accounts held with Commonwealth Bank of Australia or ANZ Banking Group Ltd; and

(d)               accounts held with Tabcorp Holdings Limited and TAB Limited,

5.3              the respondent debtor, Thomas Douglas Watkins, be restrained by himself and his servants or agents from dealing with or disposing of the following:

(a)                the foundation plan he holds with Westpac Financial Services Limited;

(b)               monies held under any superannuation policy.

6.                  Orders 1, 3, 4 and 5 shall not prevent the respondent debtor, Thomas Douglas Watkins, from paying to the National Australia Bank Limited monthly mortgage repayments of no more than $1,940.00 payable under the mortgage over the property known as 2A Constitution Court, Carlingford.

7.                  The costs of this application be reserved.

8.                  These orders, the notice of motion dated 7 September 2004 and copies of the affidavits of James Bernard Mattson sworn 7 and 8 September 2004 with the exhibits thereto and exhibit D on the motion be served on the respondent on or before 5pm Thursday 9 September 2004; such service is to be that which can be effected with the assistance of the authorities in charge of Parramatta Correctional Centre.

9.                  That if the respondent wishes to seek to vary, discharge or set aside these orders or any of them, he do so, on 2 days’ notice, before the duty judge.

10.              In any application to vary, discharge or set aside the orders, the applicant is to justify the continuation of the orders substantially as if the orders had been limited to expire at midnight on the day the matter is before the Court.

11.              The parties have liberty to apply on 24 hours’ notice in respect of any urgent aspect or difficulty caused by the orders.

12.              The matter is stood over for directions before the duty judge at 9.30 am on Friday, 17 September 2004.

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

REASONS FOR JUDGMENT

1                     Having read the affidavits of James Bernard Mattson of 7 September 2004 and 8 September 2004 together with the exhibit Z2 and on hearing counsel, I am satisfied that the conditions of s 50 of the Bankruptcy Act 1966 (Cth) are satisfied and that it is appropriate to make an order in terms of those handed up in a draft order with some procedural amendments.

2                     The respondent appears to have dishonestly altered cheques and defrauded the applicant of sums over $2 million for which he has stood his trial and been convicted.  The respondent has a judgment outstanding from the commercial list in the New South Wales Supreme Court of the sum of over $2 million.

3                     The respondent appears to have bank accounts and two parcels of land.  There is evidence that there have been attempts by those associated with him to activate and use his bank accounts, notwithstanding the fact there have been existing Mareva injunction orders in place ordered by Judges of the Supreme Court of New South Wales.

4                     In all the circumstances, in the interests of the creditors of the estate of Mr Watkins, I think it appropriate to make an order under s 50 of the Bankruptcy Act appointing Mr Condon who is a registered trustee to take control of the property of the respondent debtor.  The creditors petition is due to be heard on 16 October 2004.  There appears to have been an act of bankruptcy.  Mr Watkins is in Parramatta Gaol on remand, awaiting sentence.  There is no doubt about the debt.  There appears little doubt about the act of bankruptcy and there is credible evidence that the existing Mareva injunction may have been at risk in terms of effect.

5                     In all the circumstances, it is appropriate for me to make orders in accordance with the minute of order, initialled, amended and dated by me and which I place with the papers. 

Associate:

Dated:              20 September 2004