In the Matter of Moustafa El Moustafa Cobbs Hill (Tas) Meat Supplies Pty Ltd & Ors v Moustafa El Moustafa & Ors [1998] FCA 838

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Composition - Application for composition to be declared void or set aside - Duty of solicitor acting as controlling trustee - Scope of protection conferred by s 306B of the Bankruptcy Act 1966 (Cth) ("the Act") upon controlling trustee - Whether s 306B protects controlling trustee from costs orders - Whether s 306B protects controlling trustee from costs order in respect of omissions in report prepared under s 189A of the Act.

CORPORATIONS LAW - Insolvent trading - Liability of director - Director ceased taking active role in management of company - Whether director resigned.

Bankruptcy Act 1966 (Cth),ss 64ZA, 188, 189A, 190,222, 196, 306B

Corporations Law, s 588M

Re Mills; Ex parte Lloyd's (1997) 73 FCR 551

IN THE MATTER OF mOUSTAFA EL MOUSTAFA

A Debtor

COBBS HILL (TASMANIA) MEAT SUPPLIES PTY LTD (in liquidation) (ACN 071 384 686) and roberts limited (acn 009 475 647) and The inspector general of Bankruptcy v MOUSTAFA EL MOUSTAFA and DAVID HENRY SCOTT (AS TRUSTEE OF THE COMPOSITION) and p finkelstein

MARSHALL J

MELBOURNE

29 mAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7537 of 1998

IN THE MATTER OF : mOUSTAFA EL mOUSTAFA

A DEBTOR

BETWEEN: COBBS HILL (TASMANIA) MEAT SUPPLIES PTY LTD (in liquidation) (ACN 071 384 686), roberts limited (acn 009 475 647)

first Applicants

The inspector general in Bankruptcy

second applicant

AND: MOUSTAFA EL MOUSTAFA , DAVID HENRY SCOTT (AS TRUSTEE OF THE COMPOSITION)

first Respondents

p finkelstein

second respondent

JUDGE: MARSHALL J

DATE OF ORDER: 14 may 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. It is declared that the composition of Moustafa El Moustafa ("the Debtor") accepted at a meeting of creditors on 4 August 1997 be declared void pursuant to s 222(2) of the Bankruptcy Act 1966 (Cth). 2. The estate of the debtor be sequestrated. 3. The debtor pay the costs of and incidental to the application and such costs be taxed and paid out of the debtor's estate. 4. The question of costs payable, if any, by the controlling trustee, be reserved and the following timetable apply in relation to that issue: (a) Any affidavit in opposition to an order for costs against the controlling trustee and any further submission in opposition to such an order be filed and served on or before 4.00 pm on Tuesday 19 May 1998. (b) Any affidavit or further submission in support of an order for costs against the controlling trustee be filed and served on or before 4.00 pm Friday 22 May 1998. (c) The application in so far as it deals with the question of costs if any to be paid by the controlling trustee be adjourned to 2.15 pm Friday 29 May 1998. 5. The application other than dealt with too finality by the foregoing orders be adjourned to 2.15 pm Friday 29 May 1998.