CATCHWORDS Bankruptcy - only one creditor present by proxv at meeting of creditors called pursuant to authority under Part "af rhe Rantrnpter Act 1966 - final dividend paid - application te sat rH aside deed dismissed. Rankructew Ac ad i WO ih) vi we mn In rm mm .> D FE PLISEO EVASTO CENSORT and ANOP.. EX PARTE OFFICIAL TPIUSTEE IN No W46X of 1983 IN_THE FEDERAL COURT OF AUSTRALIA WEW_ SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON BANKPUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES ae ne ee er ne ee} AND THE AUSTRALIAN CAPITAL TERPRITOPY PE: Ez PARTE: No. W46X af 1982 ELISEO EVASIO CENSORT LAIMA CENSORI OFFICIAL TRUSTEE IN MINMITES OF CPDER TUDGE MAFING ORDER: Sheppard J. DATE OF OPDER : 20 December 1985 WHEFE MADE " : Svdnev THE COURT OPDERS THAT: 1, _Tr be by the Official Trustee in payment of the final dividend Bankruptcy paid pursuant ta BANKRUPTCY declared that the aoplication made on 31 Qctober 1985 was made after the the deed of assi1anment referred to in para. 1 of the application. 2. 'The application be otherwise dismissed, 3 There be liberty to apply. NOTE: Settlement and af the Bankruptcy Rules. entry of orders is dealt with in Rule 124 IN_THE FEDERAL COURT OF ATISTRALTA NEW SOUTH WALES DISTRICT PEGTSTRY GENERAL DIVISION No. W46X% of 1983 BANKRUPTCY DISTRICT OF THE STATE OF NEW SOTITH WALES ee ee ee ee ee AND THE AUSTRALIAN CAPITAL TERRITORY RE: ELIEEO EVASTO CENSORI LAIMA CENFORT EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY COPAM: SHEFPAPD J. NATE : 29 DECEMBER 1985 REASONS FOR JUDGMENT HIS HONOUR: This is vet a further application to set aside a deed of assianment of which Mr. John Ramsay Paul Partridde was rrustee, The deed was dated 5 April 1983 and made between the debtors. Eliseq Evasio Censor1 and Laima Ceansori. and Mr. Partridae, The deed vas in respect of their isint estate and also in respect of each of their separate estates, \ Tk appears from the minutes af the meeting of creditors which passed the requisite resolution under Part KX af the Bankruptcv Act 1966 that the persons present at the meeting were Mr. PJ. Collins. who held a proxy an behalf of a company, Charmans 'N.S.W.) Prv Limited, Mr. Partridge. who is described as a ps controlling trustee, Mr. Harper, described as cammercial manaqder to Me. Partridge, Miss Rasemary Young, said to be a secretary, and ane of the debtors, Mr. Eliseo Censori. In addition toa there being in evidence the proxv given to Mr. Collins by Charmans (MN.S.W.) Pty Limited, there is & proxy purporting ta be given by Mr, Ron Miller of Pequlan Floor n Caverinas Company of 2 Viking Court. Cheltenham. in Wictoria. The proxy is not signed and at the top of if fhere is the statement. "Appointment nf Proxv by Telephene "" There 1s no reference ta anv attendance by Mr. Miller at the meetind in the minutes. The proxy vas in favour of the chairman Section 200 of che Act provides in sub-sec. (2) that a nroxv may be appointed fo 'rate on all matters arising at a meeting or en particular matters specified in the instrument of appointment. hy his attorney or hy a prowy appointed in writing br the creditor oe his attorney, In those circumstances 1t seems cleac that the Act does not contemplate proxies appointed by telephene and the ue} Nn is)'q 'S c; P) Ky ctr psDet +o D Q H dq 1Dtr == I th th iDte un vv o D bt 1D mhns 1] of no effect, fs] In consequence, there was only one creditor present at the meeting, namely, Mr. Collins, who was validly appointed proxy for Charmans (N.S.W.) Pty Limited. Section 202 of the Act provides in sub-sec, (1) that. at a meeting under the Division (Division 2? af Part ¥), two creditors. hbeina creditors entitled to wate at the meeting present personally by attorney ar by proxy, tt constitute a quorum. Since only one was present. the meeting was not walidly held and the resolution which was surported ta he deed of passed at the meeting that the debtors e at A oD Cc ib ft) assiaqnment wnder Part X of the Act was not a resolution under s D cr U » Ley ct id ip) a oO ny far # =] Q fas ¢ ct Z D ray Dp T ps ntered into pursuant to 1f on 5 April 1983, was not a deed of assignment under Part X. Tf there were na other matter, it would follow that I should make an order under s. 222 declaring the deed fo be -veid. sts that the distribution of dividends from the estates ais far practical Purposes complete. In evidence is a "Statement of Pealisafion and Distribution af Estate" sianed bv Mr, Partridae on 18 Januarv 1984 which shows that amounts received, details of which are TLVen in another document, totalled $19.266,57. Pavments Fatalled $18.7469.40. These included Peaistrar's fees, the Frustee's remuneration, an amount for postaqe. ¢tationerv and printing fees, and $9.9000 which was ovoaid ta the creditors and epresented a dividend of 18 cents in the dollar on Fhe sum of $48,313.76 owed to the creditors The difference hetween the amounts received and the amaunts paid is $497.17. There is no explanation 1n the evidence as to how this sum was disbursed. if it was disbursed. or how otherwise 4, it has been accounted for. In the light of the fact that the amounts owed to the creditors exceed the sum of $48,000. 1£ vould seem to me that for practical purposes the sum of $9,900, which represented the dividend of 18 cents in the dollar, is all that the creditors will receive, There 18 no suaqestion that there are anv other assets which mav be realised or anv other source from which the trustee mav recover monev. Sub-section 222(6) of the Act provides that the Court shall not make an order under fhe section unless the application for Fhe order is made in relation to a deed of assianment before the final dividend has been paid under the deed. This appliczation was made on 21 Qctober 1985 after the navment of the dividend of 18 cants in the dollar. The question is whether I should reaard tfhat as beina the final dividend far the purpeses af sub-sec 22216) orc whether, there being a balance unaccounted for of almost $500. I should take the wirew that that is not the case. Tn mv opinion, one has to be practical about the matter. There is no basis upon which the creditors will in fact ce n e1lv iD anv further dividend. As I have said. for practical purposes th i) 1T hos ni] dividend alreadv paid is the final dividend. In ' circumstances. I have reached the conclusion that. although the i deed of assiaqnment was not a deed of assiaqnment under Part X& and might otherwise have been avoided under sub-sec. 222(2). I should not make the order because the application to avoid the assianment was not made until after the final dividend was paid. Discussion ensued as to the form of relief which ought to be aranted. His Honour then continued:- HIS HONOUR: I declare that the application made oan 321 October 1985 was made after the pavment of the final dividend paid pursuant to the deed of assianment referred to in paragraph 1 of the application. The avplication is otherwise dismissed. There will be libertv to apply. cearufy tnatt so. a AL Preceding PeG?s Se a. SLY aF NS reasons for judgment here:r c Ths Honourable Mr Justice Sheppard. : i ALMiinm Associate Dated 20 DECE*IBER 19957