Re: Hutton; Ex Parte: Boral Montoro Pty Ltd [1996] FCA 1206

JUDGMENT No. L2G Seanul KéeC&e

IN THE FEDERAL COURT OF AUSTRALIA ) No. QP 425 of 1995 BANKRUPTCY DISTRICT REGISTRY ) No. OP 766 of 1995 OF THE STATE OF QUEENSLAND ) No, QP 200 of 1996 Re: PETER HUTTON Debtor Ex parte: BORAL MONTORO PTY LTD Creditor And: METAL LINE INDUSTRIES PTY LTD

Substituted creditor

REASONS FOR JUDGMENT

EINFELD J BRISBANE 15 APRIL 1996

I am satisfied the debtor committed the act of bankruptcy alleged in the petition and with the proof of the other matters of which section 52(1) of the Act requires proof. I make a sequestration order against the estate to the debtor. Costs are to be taxed and paid according to the Act including reserved 'costs. I direct that a draft of this order be delivered to the

Registrar within seven days in accordance with Rule 124(2).

Ivor Worrell, a registered trustee, having filed a consent to act as trustee on 26 October 1995, would ordinarily become the trustee automatically by the operation of section 156A(3).

by ef

However, that consent appears to have taken place before the

-2- substitution of the present petitioning creditor and there may therefore be a requirement that the trustee file a further consent to act when the petition has been obtained by some party other than the creditor who on the record when some earlier comment was filed. The debtor has applied through counsel for the appointment of the Official Trustee or a registered trustee named David Clout to be the trustee and has relied upon an affidavit of the debtor and of Mr Worrell. uKs, far as I read section 156A, the debtor does not seem to be able' to be'heard on the issue of who may be appointed as trustee of the estate, 'at any rate not after the time when the sequestration ordet is

en

made.

In addition, , the debtor has relied upon, as the basis for the application for an appointment of a trustee other than Mr Worrell, a suggested conflict of interest or some other undefined impropriety. Neither the conflict of interest nor the 'alleged impropriety have been particularised and, for my part, I can see no conflict and no impropriety, on the evidence before me, for the appointment of Mr Worrell. If the present consent of 26 October may be taken as a consent to act in the event that the bankruptcy has been obtained by a creditor other than the one who was on the record at the time when the consent was made,