McDonald v Young [2012] FCAFC 137

FEDERAL COURT OF AUSTRALIA

McDonald v Young [2012] FCAFC 137 Citation: McDonald v Young [2012] FCAFC 137

Appeal from: Young, In the matter of Macryannis [2011] FCA 1272 Young, In the matter of Macryannis (No 2) [2012] FCA 175

Parties: GEOFFREY DAVID MCDONALD AS TRUSTEE OF THE BANKRUPT ESTATE OF THE LATE CHRISTOPHER JOHN MACRYANNIS AND KATHRYN ANNE YOUNG

File number: NSD 2135 of 2011

Judges: EMMETT, MIDDLETON AND ROBERTSON JJ

Date of judgment: 24 September 2012

Catchwords: BANKRUPTCY – administration under Part XI Bankruptcy Act – whether Trustee entitled to deal with non-divisible assets as part of administration – whether reference to bankrupt's assets or estate in Bankruptcy Act and Bankruptcy Regulations to be read as reference to whole of deceased person's property or as reference to divisible property only – where Trustee administered whole of estate including non-divisible assets BANKRUPTCY – whether Trustee entitled to be remunerated out of exempt assets for dealing with exempt assets – whether Trustee entitled to costs, charges and expenses of administration – whether remuneration and any costs, charges and expenses relating to dealing with exempt assets to be drawn from divisible assets or exempt assets BANKRUPTCY – extent to which NSW Trustee or the legal personal representative of the deceased has control over non-divisible assets

Legislation: Bankruptcy Act 1966 (Cth) ss 12(1)(b), 58(1), 109(1)(a), 116(1), 116(2), 134, 155H(1)(f), 156(A)(3), 162, 169, 176, 179(1), 179(2), 244, 248(1), 248(3)(c), 249(1), 249(7) Bankruptcy Regulations 1996 (Cth) regs 6.01, 8.08, 8.12, Sch 3 NSW Trustee and Guardian Act 2009 (NSW) Trustee Act 1925 (NSW) ss 63, 95 Wills, Probate and Administration Act 1898 (NSW) ss 18A, 44, 46C, 61, Part 1 of Sch 3