CATCHWORODS BANKRUPTCY - deeds of assignment - declaration that deed void - non-compliance with statute - time limitation for execution by debtor of deed. BANKRUPTCY - meeting of creditors - only one creditor present personally - other creditor present by proxy in favour of "the chairman" - whether necessary that proxy be named - whether proxy could vote in election of chairman - quorum. Bankruptcy Act 1966, ss.196, 202, 216, 217, 222 Bankruptcy Rules, rule 100 Re: James Moncur Ex parte: Desmond William Knight & Anor Qld Part X 133 of 1985 Re: Cathryn Ann Moncur Ex parte: Desmond William Knight & Anor a Qld Part X 134 of 1985 i : PINCUS J. BRISBANE 1 JULY 1988 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT 0 STATE OF QUEENS ) QLD Part X 133 of 1985 RE: vw. MONCUR EX PARTE: DESMOND WILLIAM KNIGHT Applicant JAMES MONCUR Respondent QLD Part X 134 of 1985 RE: CATHRYN ANN MONCUR EX PARTE: DESMOND WILLIAM KNIGHT Applicant CATHRYN ANN MONCUR Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 1 JULY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the deed of assignment executed by the debtors, James Moncur and Cathryn Ann Moncur, and _ the applicant, Desmond William Knight in April 1986 be declared void; 2. service of notice of the application on the debtor James Moncur be dispensed with; 3. there be no order as to costs. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. THE FED) COURT OF AUSTRALIA ~ GENERAL DIVISION ) UPTCY DIS' IcT OF ) BANKRUPTCY DISTRICT OF THE SQUTHERN DISTRICT OF THE STATE OF QUEENSLAND ) PINCUS J. QLD Part X 133 of 1985 RE: J. MONCUR EX PARTE: DESMOND WILLIAM KNIGHT Applicant JAMES MONCUR Respondent QLD Part X 134 of 1985 RE: CATHRYN_ ANN MONCUR EX PARTE: DESMOND WILLIAM KNIGHT Applicant CATHRYN ANN MONCUR Respondent 1 JULY 1988 REASONS FOR JUDGMENT These are two applications for declarations that a deed of assignment, described as being "executed by the Debtors and the Applicant on April 21, 1986" is void. The applicant is the trustee and the respondents are the debtors, Mr and Mrs Moncur. The deed in question, purporting to assign the property of the debtors to the trustee, was executed in consequence of creditors' meetings held on 6 November 1985. One of the two creditors, whose presence was necessary for there to be a quorum (see s.202(1) of the Bankruptcy Act) was present by a proxy given in favour of "the chairman", according to a document attached to the minutes. Attempts to obtain a copy of the proxy have not succeeded, but it appears to me that I should infer from the minutes that it referred to "the chairman", without naming hin. The point taken by Mr Russell for the applicant was that r.100 contemplates the use of form 43 or 44 for the appointment of a proxy. Both of them are so drawn, it was said, as to indicate the person appointed must actually be named and not merely described. In my opinion that is not so: Bombay-Burmah Trading Corporation Limited v. Dorabji Cursetji Shroff £1905] A.C. 213. That case concerned the construction of company articles which, in dealing with proxies, referred to "the person named" and used a form which was similar to forms 43 and 44 in the respect relied on - i.e. as using the words "appoint of . The Privy Council held that a proxy in favour of a person "sufficiently described ... for all business purposes" was enough. What I have said assumes that there was no other obstacle in the way of use of the proxy in question; that is the "third point", dealt with below. A second point taken is as to the time of execution of the deed. The sequence of events was as follows:- First meeting of Assignment contemplated in favour of creditors 6.11.85: one Turner. . Second meeting Resolution that D.W. Knight be 18.4.86: appointed trustee of the deeds. 21.4.86: Execution by C.A. Moncur and D.W. Knight. . 28.4. 86: Execution by J. Moncur. Sections 216 and 217 require that the deed be executed by the debtor and trustee within 21 days of the special resolution requiring it to be executed, but say that if the trustee nominated does not execute the deed, a further meeting may be called to nominate another trustee; that substituted trustee must (prima facie) execute within seven days of the nomination. These provisions do not deal with the case where, as appears to be so here, no one executed a deed of any kind within 21 days, That defect was not cured by the second meeting. Somewhat curiously, the provisions of s.217 do not set a time for execution of the "new" assignment on the part of the assignors, who, even where a substitute trustee is nominated, apparently continue to be bound by the time requirement of s.216(1). No doubt, ordinarily, the Court would extend the time for execution by the assignors, in such circumstances. Here, it would plainly be inappropriate to extend time. It follows that the deed in question was not executed in time by either of the debtors, and it was therefore not entered into in accordance with Part X, mor did it comply with the requirements of that part - see s.222(1). There was not, in my opinion, substantial compliance with the Act: s.222(3). A further point, not raised in argument, is whether there was a chairman elected at the first meeting. That had to be done for the appointment of the proxy referred to above to take effect. Section 196(1) provides that: "The majority in number of the creditors present at the meeting in person, by attorney or by proxy shall elect a chairman to preside at the meeting." There was a purported election of a chairman, but the proxy I have mentioned could not be used in voting on that question. Only one creditor was present in person and there was no other proxy. Therefore there was no quorum in relation to the election of the chairman. One cannot rely on proxies given in favour of "the chairman" in a vote on the election of the chairman. Therefore, in my view, there never was a chairman duly elected and the proxy never took effect. Other Matters Mr James Moncur was not served with these proceedings as he cannot be found. I will dispense with service on him under 8.222(8). Mrs Cathryn Moncur was represented at the hearing and consented to the grant of the relief sought by the applicant. A a dispute arose as to costs, and it is my opinion that in the whole of the circumstances there should be no order as to costs. It will be ordered, however, that the deed of assignment executed by the debtors and by the applicant in April 1986 be declared void, and that service of notice of the application in relation to James Moncur upon him be dispensed with. certify that prec arate LL motes cree truz copy cf tne rl sos f° Juagment he.c.3 of His Honcur Nite. Justie 2 Pincus Angler Sree Associate Dated | JuLy 1999 Solicitors for the applicant: Clarke and Kann Solicitors for the respondents: Bowdens Date of Hearing: 27 June 1988