Estate of Hancock (Deceased) v Bennett (Executor) [1999] FCA 295

FEDERAL COURT OF AUSTRALIA

Estate of Hancock (Deceased) v Bennett (Executor) [1999] FCA 295

BANKRUPTCY – administration of an estate in bankruptcy – whether valid debt – discretion to dismiss petition – need for independent and impartial administrator. CORPORATIONS – fiduciary duties – improper purpose – conflict of interest – abuse of power – calls on shares and forfeiture – whether meeting held – validity of resolution making a call on shares – distinction between motive and purpose of the directors' decision – whether company genuinely in need of funds or whether genuine debt

ABUSE OF PROCESS – petition for administration of estate in bankruptcy where no valid debt WORDS & PHRASES – "debt", "abuse of process" Bankruptcy Act 1966 (Cth) s 244 Federal Court Rules (Cth) O 77 r 9 and r 11 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410, followed Estate of Hancock (Dec); Porteous v Rinehart (as Executor and Trustee of the Estate of Hancock) (unreported, 31 August 1998), cited Jones v Dunkel (1959) 101 CLR 298, cited Briginshaw v Briginshaw (1938) 60 CLR 336, followed Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285, distinguished Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821, distinguished King v Henderson [1898] AC 720, applied Williams v Spautz (1992) 174 CLR 509, applied The Commonwealth v Verwayen (1990) 170 CLR 394, followed THE ESTATE OF LANGLEY GEORGE HANCOCK (DECEASED) v

MARTIN LAWRENCE BENNETT, GARRY RICHARD SCHWAB AND GEORGINA HOPE RINEHART AS THE EXECUTORS OF THE ESTATE OF LANGLEY GEORGE HANCOCK NG 8429 OF 1997 TAMBERLIN J SYDNEY 25 MARCH 1999 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 8429 OF 1997

BETWEEN: THE ESTATE OF LANGLEY GEORGE HANCOCK (DECEASED)

Applicant

AND: MARTIN LAWRENCE BENNETT,