Fletcher (Trustee) v Keating [2017] FCA 1050

FEDERAL COURT OF AUSTRALIA

Fletcher (Trustee) v Keating [2017] FCA 1050 File number: QUD 837 of 2016

Judge: COLLIER J

Date of judgment: 5 September 2017

Catchwords: BANKRUPTCY AND INSOLVENCY – application by former trustee – where sale of real property settled after discharge of bankruptcy – application for declaration that surplus funds from sale of real property vested in trustee – where funds from settlement applied to repayment of primary loan – where balance of funds retained as security for outstanding debt owed by bankrupt in capacity as trustee of investment trust – where bankrupt personally guaranteed loan CONTRACTS – guarantees – default of debtor – creditor's right to enforce guarantee – whether notice required before creditor entitled to enforce guarantee – right of subrogation – whether right of guarantor to claim subrogation excluded by contract or conduct – where agreement for creditor to hold funds as security PRACTICE AND PROCEDURE – application to vary costs in order for substituted service – whether personal service impracticable – whether reasonable steps taken to attempt personal service

Legislation: Bankruptcy Act 1966 (Cth) ss 58(1), 58(1)(b), 116, 116(2)(a), 116(2)(d)(iii)(A), 153, 309 Superannuation Industry (Supervision) Act 1993 (Cth) s 19 Federal Court Rules 2011 (Cth) r 10.24

Cases cited: Bofinger v Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269 Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 Matouk v The Entrance Seabreeze Pty Ltd [2010] NSWSC 649 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797 Re Pevsner, ex parte Trustee in Bankruptcy [1983] FCA 119; (1983) 68 FLR 254 Silvia v Thomson [1989] FCA 394; (1989) 87 ALR 695 Sunbird Plaza Proprietary Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245 Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664