Low v Bluestone Group Pty Ltd

[2013] FCCA 412

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOW v BLUESTONE GROUP PTY LTD [2013] FCCA 412

Catchwords:
BANKRUPTCY – Fixing of a Trustee’s remuneration for the administration of an estate – consideration of s.30 of the Bankruptcy Act.

Legislation:  
Bankruptcy Act 1966 (Cth), s.30

Bankruptcy Regulations 1966 (Cth), Reg.8.09
Federal Circuit Court Rules 2001 (Cth)

McDonald v Sanders [2007] FMCA 649

Applicant: JENNIFER ELIZABETH LOW

Respondent: BLUESTONE GROUP PTY LTD
ACN 091 201 357

File Number: PEG 66 of 2013

Judgment of: Judge Whelan

Hearing date: 16 May 2013

Date of Last Submission: 16 May 2013

Delivered at: Perth

Delivered on: 16 May 2013

REPRESENTATION

Counsel for the Applicant: Mr A Carles

Solicitors for the Applicant: Carles Solicitors

Counsel for the Respondent: No appearance by or on behalf of the Respondent

ORDERS

1. Pursuant to r.18.01 of the Federal Circuit Court Rules 2001 (Cth) the application filed on 15 April 2013 for orders fixing the remuneration of the Applicant Trustee in the administration of the estate of Rebecca Anne Duxbury, together with the material filed in support of that application, be referred to a Registrar of this Court for the purposes of investigating, and providing a report and recommendation to the Court with the view to the Court fixing the remuneration of the Applicant Trustee pursuant to s.30 of the Bankruptcy Act 1966 (Cth).

AND THE COURT NOTES THAT:

On receipt of the report of the Registrar, the Court may deal with any further orders in Chambers.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 66 of 2013

JENNIFER ELIZABETH LOW

Applicant

And

BLUESTONE GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the TRUSTEE OF THE BANKRUPT ESTATE OF REBECCA ANN DUXBURY (“the Applicant”) seeks an order of the Court under s.30(1)(b) of the Bankruptcy Act 1966 (Cth) (“the Act”) fixing her remuneration at $39,664.20 plus GST.

2. The Applicant relies on an affidavit sworn on 10 April 2013 and submissions lodged with the Court on 15 April 2013.

3. The Court has had the benefit of those submissions and also of the guidance of the judgment of Driver FM (as he was then) in McDonald v Sanders [2007] FMCA 649 (“McDonald”).

4. The history of regulation of Trustees’ fees set out in the material before the Court explains quite clearly the difficulty faced by the Applicant, and indeed by the Court, where as in this case the bankruptcy commenced prior to 1 December 2010 and the remuneration of the Trustee has not been fixed by creditors.

5. I accept the proposition of Driver FM that the Court has power to access and determine a Trustee’s remuneration pursuant to ss.30 and 178 of the Act. I further accept that the prescribed statutory mechanism for dealing with a Trustee’s remuneration which applied at the relevant time, that is 1 May 2009, has proved to be unworkable.

6. Indeed, the amendments providing for the Inspector General to fix the remuneration, in accordance with the Bankruptcy Regulations 1966 (“the Regulations”), operative from 1 December 2010 implicitly recognised that the previous mechanisms were no longer appropriate.

7. In my view, however, the appropriate course in the context of this case is to refer the matter to a Registrar of the Court for the purpose of investigating and providing a report and recommendation to the Court, having regard to the terms of Reg.8.09 of the Regulations, with a view to the Court fixing at an appropriate level, the remuneration of the Applicant Trustee pursuant to s.30 of the Act.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date:  29 May 2013