Fuller v Wily [1995] FCA 1205

JUDGMENT flo, 20S got

IN_THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 34 of 1995 GENERAL DIVISION )

ON APPEAL FROM THE ORDERS AND JUDGMENT OF THE HONOURABLE MR JUSTICE JENKINSON MADE AND DELIVERED ON THE 5TH DAY OF MAY

RE: MICHAEL JOHN FULLER, A_ BANKRUPT BETWEEN: MICHAEL JOHN FULLER Appellant AND: HUGH JENNER WILY Respondent CORAM : RYAN J PLACE: MELBOURNE DATE: 02 NOVEMBER 1995

MINUTE OF ORDERS

1. That the motion on notice dated 8 August 1995 be

dismissed. 2. That there be no order as to costs. NOTE: Settlement and entry of orders is dealt with in O 36

of the Rules of the Federal Court of Australia.

IN THE FEDRRAL COURT OF AUSTRALIA )

SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 34 of 1995 GENERAL DIVISION )

ON APPEAL FROM THE ORDERS AND JUDGMENT OF THE HONOURABLE MR JUSTICE JENKINSON MADE AND DELIVERED ON THE 5TH DAY OF MAY i995 :

RE: MICHAEL JOHN FULLER, A_BANKRUPT BETWEEN: MICHAEL JOHN FULLER Appellant AND: HUGH JENNER WILY Respondent CORAM: RYAN J PLACE: MELBOURNE DATE: 02 NOVEMBER 1995

REASONS FOR JUDGMENT

RYAN J: A sequestration order against the estate of the above-named bankrupt, Mr Fuller, was made on 20 May 1993 on the petition of Claremont Petroleum NL ("Claremont") . The solicitors for the petitioning creditor were Piper Alderman who had also been the solicitors for Claremont and Beach Petroleum NL ("Beach") in the proceedings numbered G 53 of 1991 in this court in which the applicants recovered judgment on 16 June 1993 in the sum of $44.45m against, amongst others, the bankrupt. The respondent, Mr Wily, ("the Trustee") was appointed trustee of the bankrupt estate. Subsequently, Messrs Piper Alderman instructed Counsel who appeared for the Trustee on the examination of the bankrupt under s 81 of the

Bankruptcy Act.

-2- An application for removal of Mr Wily as Trustee was made by the bankrupt and based on the Trustee's refusal to prosecute an appeal against the judgment which had been entered on 16 June 1993. It was submitted, in effect, that in taking the Gecision not to prosecute the appeal, the Trustee had been influenced by the interest of Piper Alderman as a creditor of Beach in having the appeal not proceed. In December 1993, Piper Alderman, because of a perceived conflict of interest, ceased to act as the solicitors for the Trustee in connection