Starkey as Trustee of the Estate of Peter John Dance v Rondo Building Services Pty Ltd [2005] FCA 1081

FEDERAL COURT OF AUSTRALIA

Starkey as Trustee of the Estate of Peter John Dance v Rondo Building

Services Pty Ltd [2005] FCA 1081

BANKRUPTCY – trustee – removal of trustee – creditors' resolution to remove trustee defeated – whether some creditors wrongly admitted to vote – nature of trustee's decision on entitlements to vote – removal of trustee for likely difficulty in acting with impartiality in the interests of creditors – whether reasonable apprehension of partiality is sufficient to enliven discretion – requirement that trustee be independent and be seen to be independent – difficulties arising for trustee in responding to apprehension of partiality WORDS AND PHRASES - 'likely', 'difficult'

Bankruptcy Act 1966 (Cth) ss 30, 156A(4) and (5), 178, 179, 63A, 64D, 64ZA, 181, 5(1)

Starkey (Trustee) v Rondo Building Services Australia [2005] FCA 551 cited

Re Zantiotis; Ex parte Andrew (unrep, FCA, Beaumont J, 17 May 1998) cited

Re Spanney; Ex parte Holtzmann (1935) 38 WALR 13 cited

Staples v Milne (1998) 83 FCR 203 cited

Macchia v Nilant (2001) 110 FCR 101 cited

Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391 cited

Re Hetherington (unrep, FCA, Sweeney J, 14 December 1982) cited

Re Partridge (unrep, FCA, Lockhart J, 22 September 1982) cited

Re Beale; Ex parte Board of Trade [1939] 1 Ch 761 cited

Dillinger v Halcha Holdings Pty Ltd (Administrator Appointed) (1995) 134 ALR 178 cited

Commonwealth of Australia v Irving (1996) 144 ALR 172 cited

GRAHAM LINDSAY STARKEY AS TRUSTEE OF THE ESTATE OF PETER JOHN DANCE v RONDO BUILDING SERVICES PTY LTD (ACN 000 289 207)

QUD 89 OF 2005

FRENCH J

5 AUGUST 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD89 OF 2005

On Appeal from the Federal Magistrates Court

BETWEEN: GRAHAM LINDSAY STARKEY AS TRUSTEE OF THE ESTATE OF PETER JOHN DANCE