One has to wonder if Sydney lawyers Steve Polczynski and Dajana Malnersic have something against registered liquidator and trustee in bankruptcy Liam Bailey?
The latter is an experienced practitioner, well founded in the skills necessary to act on either corporate or personal insolvency appointments.
” … on the applicant’s case, there is a surfeit of Trustees in relation to the bankrupt estate of Ms Burrows and they contend that their preferred Trustee be confirmed by the Court, by reference to what they say is the automatic effect of s 156A”. Judge Sophie Given.
Yet it appears from the recent judgment of Federal Circuit and Family Court judge Sophie Given that the partners of Polczynski Robinson had a clear preference in respect of who would be the trustee in bankruptcy of a Ms Samantha Burrows. And it wasn’t the O’Brien Palmer luminary.
No indeed. According to the judgment of Judge Given in Polczynski as Trustee of the Polczynski SPC Trust v Burrows [2022] FedCFamC2G 700, the Polczynski Robinson pair had one name and one name only in mind.
Andrew Scott, the pride of PwC’s personal insolvency division and the registered trustee who’d signed a consent to act as Burrows’ trustee back in May this year, about two months after Polczynski, Malnersic and Swaab Attorneys‘ Julie Briscoe commenced creditors petition proceedings seeking to sequester Burrows’ estate.
Five return dates followed the commencement of those proceedings before they were dismissed by a registrar on August 18, three days after Burrows had presented a debtors petition to AFSA which was accepted and led to the appointment of Bailey as trustee.
Why the lawyer/creditors weren’t satisfied with Bailey isn’t explored. As Judge Given recounts: “There is no suggestion made that either of Messrs Scott or Bailey would be an unsuitable Trustee or that either has any conflict of interest in relation to the estate of Ms Burrows.
“Rather, on the applicant’s case, there is a surfeit of Trustees in relation to the bankrupt estate of Ms Burrows and they contend that their preferred Trustee be confirmed by the Court, by reference to what they say is the automatic effect of s 156A upon Ms Burrows having been made bankrupt,” the judge said.
The applicants contended that because Scott had signed and lodged his consent with AFSA, the moment Burrows’ debtors petition was accepted he became her trustee by virtue of having filed the relevant instrument. Her honour wasn’t having it.
“This is not a situation where are two competing Trustees who have been appointed,” she said.
“Rather, it appears that, as of 15 August 2022, Mr Bailey was appointed as the Trustee in the bankrupt estate of Ms Burrows, pursuant to her having presented the debtor’s petition.
“Mr Scott would only have become the Trustee if the estate had proceeded to become bankrupt pursuant to the making of a sequestration order under s 43 of the Act.
“In those circumstances, the relief that is sought by the applicant is not available, in particular given no application has been formally made seeking to annul the bankruptcy as an abuse of process,” she said.
Pass the lemon.
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