Smiles, James John v Inspector General in Bankruptcy & Ors [1998] FCA 655

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - Composition - special resolution of creditors accepting composition - proxies of certain creditors excluded by controlling trustee - instruments of proxy in question lodged with controlling trustee between date of commencement of meeting and date to which meeting adjourned - proxies excluded because instruments appointing them not received before announcement about appointment of proxies made by controlling trustee under s 64M of Bankruptcy Act 1966 (Cth) in first part of meeting - Bankruptcy Rule 85A - whether provisions of Division 5 of Part IV of Act (applicable to meetings of creditors of a bankrupt convened by trustee of bankrupt's estate) "capable of being applied to" holding and conduct of a meeting of creditors of a debtor under Division 2 of Part X of Act, called by solicitor or registered trustee. Bankruptcy Act 1966 ss 64M, 64ZB, 196, 198, 200 Bankruptcy Rules r 85A

JAMES JOHN SMILES v INSPECTOR GENERAL IN BANKRUPTCY & ORS

NG 611 OF 1997 EINFELD, LINDGREN, EMMETT JJ SYDNEY 30 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 611 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JAMES JOHN SMILES

Appellant

AND INSPECTOR GENERAL IN BANKRUPTCY

FIRST Respondent

GEOFFREY DAVID mcDONALD

SECOND RESPONDENT

GILES GEOFFREY WOODGATE

THIRD RESPONDENT

JUDGES: einfeld, lindgren, emmett jj

DATE: 30 march 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed with costs. 2. The orders made on 9 July 1997 in proceeding NX 33 of 1996 be set aside. 3. In lieu thereof the following orders be substituted: (a) the preliminary question posed for determination of the Court be answered "Yes"; (b) the proceedings be dismissed; (c) the applicant pay the respondents' costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.