Federal Court of Australia
Federal Court of Australia Vines, in the matter of the Bankrupt Estate of Mitchell (No 2) [2024] FCA 1378 File number:
Judgment of: FEUTRILL J
Date of judgment: 15 November 2024
Date of publication of reasons: 29 November 2024
Catchwords: PRACTICE AND PROCEDURE – application to amend originating process and join respondents – application to vary orders appointing interim receivers – reasonably arguable claims for declaratory and other relief disclosed in affidavits in support of claims – controversy as to trustees of trusts and members of companies – controversy as to property of bankrupt – reasonably arguable proprietary interest or contingent proprietary interest of bankrupt in shares in companies, units in unit trusts and income and corpus of discretionary trusts – risk of dissipation of company and trust property – usual undertaking as to damages – balance of convenience BANKRUPTCY AND INSOLVENCY – property of bankrupt within the meaning of s 58 of the Bankruptcy Act 1966 (Cth) – bankrupt beneficiary, appointor and controller of corporate trustee of discretionary trusts – whether bankrupt has reasonably arguable contingent property in income and corpus of trust property
Bankruptcy Act 1966 (Cth) ss 5, 30(1)(b), 58, 116; Sch 2 s 90-15 Corporations Act 2001 (Cth) ss 9, 109X, 175, 1072C, 1323, 1323(1)(h) Legislation: Federal Court of Australia Act 1976 (Cth) ss 23, 57 Federal Court (Bankruptcy) Rules 2016 (Cth) Federal Court Rules 2011 (Cth) rr 8.21, 9.05(1), 9.05(4), 39.05(e); Pt 10
Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; 153 FCR 509 Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; 192 CLR 226 Commissioner of Taxation (Cth) v Vegners (1989) 20 ATR 1645 Deputy Commissioner of Taxation v Vasiliades [2014] FCA 1250; 323 ALR 59 Cases cited: Fordyce v Ryan [2016] QSC 307; [2017] 2 Qd R 240 Gartside v Inland Revenue Commissioners [1968] AC 553 Kennon v Spry [2008] HCA 56; 238 CLR 366 Re Pleash (as liquidators of Equititrust Ltd (in liq) (recs and mgrs. apptd)) (No 3) [2017] FCA 1074 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; 249 FCR 483 Vines, in the matter of the Bankrupt Estate of Mitchell [2024] FCA 1276
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