Huynh v Pascoe [2002] FCAFC 73; [2002]FCA 309

Huynh v Pascoe [2002] FCAFC 73 Huynh v Pascoe [2002] FCA 309

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Huynh v Pascoe [2002] FCA 309

BANKRUPTCY – application to remove trustee of bankrupt estate by single creditor – existence of two or more creditors – meeting of creditors convened by applicant creditor for purpose of removal of trustee – meeting attended by only the applicant creditor notwithstanding existence of other creditors – whether quorum nevertheless present and if so whether trustee should be removed by reason of unreasonable failure to recognise existence of quorum or unreasonable failure otherwise to remedy the situation confronting the applicant – absence of quorum because two or more creditors required for a quorum where there are two or more creditors.

Bankruptcy Act 1966 (Cth), ss 63, 63A, 64, 64A, 64D, 64L, 64M, 64N(2)(7), 64P, 64ZA(1)(2)(3)(6)(8)(9), 156A(3), 178, 181 Bankruptcy Act 1924, s 160 Companies Act 1948 Bankruptcy Rules, r 96 sub-r (1), (2) and (3)

McDonald et al Australian Bankruptcy Law and Practice, 4th ed. 1968 at p.437

Explanatory Memorandum, Bankruptcy Amendment Bill 1991

Re Burton; Burton & Ors v Wily (1994) 122 ALR 399 considered Jones v Dunkel (1959) 101 CLR 298 referred to The London Flats Ltd [1969] 2 All ER 744 approved Re Nelson (1963) 19 ABC 172 approved Re Foster; Ex parte Foster v Duus (1994) 49 FCR 309 considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited House v The King (1936) 55 CLR 499 referred to VAN TRI HUYNH v SCOTT DARREN PASCOE N1317 of 2001 RYAN, CARR & CONTI JJ 20 MARCH 2002 SYDNEY