Huynh, Van Tri v Pascoe, Scott Darren [2001] FCA 1187

FEDERAL COURT OF AUSTRALIA

Huynh v Pascoe [2001] FCA 1187

bankruptcy – application by creditor for removal of trustee – whether quorum present at meeting of creditors – whether applicant a "creditor who is entitled to vote" within meaning of subs 64N(2) of Bankruptcy Act 1966 (Cth) – whether applicant had given respondent a proof of debt in the bankrupt's estate Bankruptcy Act 1966 (Cth) ss 64, 64A, 64B, 64D, 64J, 64K, 64N, 64P, 64ZA, 156A(3), 178, 181 Jones v Dunkel (1959) 101 CLR 298, cited Wilson v The Commonwealth [1999] FCA 219, cited Re Burton; Burton & Ors v Wily [1994] 122 ALR 399, cited VAN TRI HUYNH v SCOTT DARREN PASCOE N 7092 of 2001 BRANSON J SYDNEY 28 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7092 of 2001

BETWEEN: VAN TRI HUYNH

APPLICANT

AND: SCOTT DARREN PASCOE

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 28 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7092 of 2001

BETWEEN: VAN TRI HUYNH

APPLICANT

AND: SCOTT DARREN PASCOE

RESPONDENT

JUDGE: BRANSON J

DATE: 28 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant has applied under s 178 of the Bankruptcy Act 1966 (Cth) ("the Act") for an order that the respondent be removed as trustee of the estate of the bankrupt Le Dinh Thi Than ("the bankrupt"). 2 The respondent became the trustee of the bankrupt's estate, by virtue of subs 156A(3) of the Act, on 5 June 2000. The applicant is a creditor of the bankrupt's estate. By letter dated 24 October 2000 the solicitors for the applicant requested the respondent to call a meeting of creditors of the bankrupt's estate and of the bankrupt's bankrupt husband's estate for the purpose of removing the respondent as trustee of both estates. The letter advised that the applicant did not wish to appoint a private trustee. 3 The respondent gave notice of meeting of creditors of the bankrupt's estate to be held on 17 November 2000 at "12pm". The applicant was the only creditor to attend the meeting. The respondent, apparently taking the view that there was no quorum, declined to proceed with the meeting. He adjourned the meeting until 30 November 2000. At the commencement of the adjourned meeting on 30 November 2000 the applicant was again the only creditor present. Again the respondent declined to proceed with the meeting. 4 The applicant contends that the respondent ought to have allowed one or other of the meetings to proceed. If either of the meetings had proceeded, the applicant would have voted in favour of removing the respondent as trustee of the bankrupt's estate. The applicant has argued that in the circumstances it would be an appropriate exercise of the discretion of the Court under s 178 of the Act to make an order removing the respondent as trustee of the bankrupt's estate.