Swain, J.P. & Anor v. Inspector-General in Bankruptcy & Ors [1994] FCA 710

JUDGMENT NO. see! Queenl att.

CATCHWORDS

BANKRUPTCY - Deed of Arrangement under Part X, Bankruptcy Act, 1966 (Cth) - collection of money or property by Official Receiver from party to transaction that is void against the trustee - whether sale by trustee of property with net value in excess of $20,000 was in breach of ss. 134 and 135 - whether, notwithstanding trustee's breach, transaction valid.

BANKRUPTCY - Trustees -— Remedies and penalties for breach of duty by trustee - trustee also appointed trustee of deed of maintenance under s.87 Family Law Act - whether court's power pursuant to s.176(2)(c) should be exercised as a remedy for a breach of duty a trustee in his capacity as a trustee under the Bankruptcy Act.

FAMILY LAW - Deed of maintenance agreement under s.87, Family Law Act, 1975 - whether trustee owed any fiduciary duty to debtor's estate other than in relation to any surplus remaining from the proceeds of realisation of an assigned asset.

Bankruptcy Act, 1966 (Cth) ss. 134, 135, 176, 237, Family Law Act, 1975 (Cth) 5s. 87

RECEIVED 17 OCT 1994

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTAY

g JUDGMENT NOx ends Coal tn

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IN_THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES No NB 247 of 1988 Re: JOHN PHILIP SWAIN WILLIAM EDWARD ANDKEW Applicant/Cross—Respondent

INSPECTOR-GENERAL IN BANKRUPTCY

First Respondent/Cross-Applicant

ANGUS BARTLEY CAMERON THORBURN

Second Respondent

Third Respondent

COMMISSIONER OF TAXATION

Fourth Respondent

ARTLEY

Fifth Respondent Coram: Olney J Place: Melbourne (Heard in Sydney) Date: 7 October 1994

MINUTE OF ORDERS

THE COURT ORDERS THAT: 1. The applicant be directed to distribute all moneys

presently held by him in his capacity as trustee under the Deed of Arrangement executed on 20 July 1988 by John Philip Swain in accordance with the terms of the deed and