RE Heron, Robert James EX PARTE The Official Trustee in Bankruptcy [1997] FCA 107

NOT FOR GENERAL DISTRIBUTION NO QUESTION OF PRINCIPLE BANKRUPTCY ACT IN THE FEDERAL COURT OF AUSTRALIA) EXERCISING FEDERAL JURISDICTION ) IN BANKRUPTCY ) No NB 1325 of 1991 GENERAL DIVISION ) Re: ROBERT JAMES HERON

Ex parte: THE OFFICIAL TRUSTEE IN BANKRUPTCY

CORAM: Lindgren J PLACE: Sydney DATE: 4 February 1997 REASONS FOR JUDGMENT (ex tempore) INTRODUCTION The Official Trustee applies by an application dated 5 December 1996 for an order pursuant to sub-S 109(10) of the Bankruptcy Act 1966 ("the Act"). Sub-section 109 (10) reads as follows: "109(10) Where in any bankruptcy: (a) property has been recovered, realized or preserved under an indemnity for costs of litigation given by a creditor or creditors; or (b) expenses in relation to which a creditor has, or creditors have, indemnified a trustee have been recovered; the Court may, upon the application of the trustee or a creditor, make such orders as it thinks just and equitable with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving the indemnifying creditor or creditors, as the case may be, an advantage over others in consideration of the risk assumed by creditor or creditors."

The current form of the Official Trustee's application is an amended application which was filed on 17 December 1996. It seeks the following orders: "1. That the balance of the sum held by the Official Trustee in respect of the bankrupt Estate of Robert James Heron after payment of:- (a) The payments set out in paragraph 16 of the Affidavit of George Lionel Caddy sworn 3rd December, 1996, amended by a letter from ITSA dated 16 December 1996 (b) The costs of this application. the [sic - be] applied, first in the payment of a dividend of 100 cents in the dollar in respect of the proved debt of Jean Sayer in the sum of $211,986.00 (or such dividend as the balance of the sum of held by the Official Trustee permits.) 2. The remainder (if any) of the sum held by the Official Trustee after payment of the sums referred to in paragraph 1, shall be distributed pro-rata amongst the other creditors of the bankrupt Estate of Robert James Heron. 3. Costs."