1. & p;&nssp; Subj>Subject to
the applications by their counsel undertaking not to deal in any way
(othen colon ofs and maintenance
and repairs) with any land
registered in the the namesnames of a of any of Remex Investment Limited, Bremex Limited
or Richstone Real Estate Limited until the determination of the
application for
leave to appeal and the appeal (if leave is granted) in civil case no.37
of 2001 or until further
order, the injunctions
granted on 24 November 2000 against Remex Investment Limited, Bremex
Limited and Richstone
Real Estate Limited in the above matter are
discharged forthwith.
2. &nnbsp; The cThe costs
of of an incidental to this application be the Trustees�
costs in the
administratib>
3. &nbssp; &nsp; Such furdher tions or orde orders as to the
Honourable
Court may seem meet.
I heard
this application this morning and gr the orders sought. I said said I would
deliver the reasons in a written ruling
later. I do so now.
The
Background
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On 24th
Ner 2000, I granted an injunction against Remex Investment Lent Limited,
Premex Limited and Richstone Real Estate Limited,
their directors, servants
or agents to restrain them from selling, leasing, charging or otherwise
dealing with or making
any disposition of any of their property including
real property, shares, motor vehicles and bank accounts pending the
determination of the Creditor�s Petition or further order. On 13th
December 2000, I made the receiving order against the estate of Mr. Fera
(now adjudged bankrupt). I also appointed Messrs
Morris and Prince as
Special Managers. The injunction however remained in force. By Order made on
23rd May 2001, I ordered that (1), the statutory register in
respect of Remex
Investment Limited, Bremex Limited and Richstone Real Estate Limited be
regularised or if there be no register, to create
one to accord with the
declarations in that Court Order and (2) the Trustees (then Special Mangers)
convene an extraordinary
general meeting of Remex Investment Limited, Premex
Limited and Richstone Estate Limited for the purpose of the shareholders
appointing new directors, removing directors or continuing them as the
shareholders might think fit. In pursuance of
this Order, an extraordinary
general meeting of Remex Investment Limited, Premex Limited and Richstone
Real Estate Limited
was convened on 27th July 2001. In all of
these Companies, Mr. Fera had ceased to be a director following his being
adjudicated a bankrupt
by order of this Court on 13th June 2001.
He was also removed as Company Secretary. Messrs Morris and Anders were
appointed directors of all these Companies.
It was also resolved by all
these Companies that the injunctions I ordered on 24th November
2000 be lifted and they would instruct their legal adviser to make an
application to the court in that regard.
Other matters were also dealt with
at that Meeting on 27th July 2001.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Hearing of the application
The Summons filed on 2nd
August 2001 above was copieMr. Tori and others, Mobil obil Oil Austral Pty
Limited, the Creditor, and A & A Legal
Services, the Solicitor for Mr. Tori
and others. Mr. Hauirae for A& H Lawyers
appeared for Martha Maofalifaga and Remex Fera. Mr. Wasiraro of the Pubic
Solicitor�s Office who appeared
for Mr. Fera, already adjudicated a
bankrupt, was opposed by Counsel for the Trustees, Mr. Sullivan. I ordered
that Mr.
Wasiraro be excused and he left the Courtroom. The reason was that
this application was being made on the request of all Companies
at the
extraordinary general meeting held on
27th
July 2001. The resolution to do this was passed by the new directors
appointed at that Meeting. Mr. Fera, the bankrupt,
had played no part in
that decision. He cannot challenge the decision of the new directors in this
regard. This is however,
not saying, that a bankrupt has no rights whatever
in terms of the administration of the estate by the trustees. There are
protective provisions in the Act but they are limited in scope and are
within the supervisory powers of the Court. The
position of a bankrupt is
that-
�...As
so a person becomes bankrupt all the �property of the bankrupnkrupt� as
defined in s.116 (���) vests forthwith
in the Official Receiver in
Bankruptcy, and the official receiver for the Bankrupt District in which the
sequestration
order was made or in which the debtor�s petition was presented
(as the case may be) becomes the trustees of the estate (s.160).
Upon the
appointment of a registered trustee in place of the official reliever, the
property passes automatically to
the trustee form The Official Receiver in
Bankruptcy subject to any registration requirements� ���. The result is that
from the time when the debtor becomes bankrupt he is automatically deprived
of most of his property and all the attributes
of ownership are shorn from
him, so that any attempt on his part to deal with it is no more effective
than the act of
a complete stranger, subject always to the protective
provisions discussed in the previous chapter��(see page 148 of Lewis�s
Australian Bankruptcy Law by Dennis J. Rose 1970 sixth Edition.)
The appearance of Mr. Fera as a bankrupt in Court through Counsel, Mr. Wasiraro,
was thas therefore that of a stranger as far
as the trustees were concerne
for the purpose of this application. I upheld Mr. Sullivan's objection on
this basis.
There was
also confusion over which Counsel should represent Remex Investment Limited,
Premex Limited and Richstone Real
Estate Limited as they were represente by C by Counsel Mr. Ashley in Civil Cases No. 7 and 37 of 2001. The fact is that
the change of control of these Companies was effected on 27up>
July 2001 at01 at the extraordinary general meeting atng at which new directors were
appointed who are now in control of
tfairs of these Companies in
compliance with the Orders I made on 23rd June June 2001 referred to
above. Counsel Mr. Ashley could no longer represent them in this
application.
This Application
p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
This
application was made to remove the effect ofinjunction I granted on 24th
November 2000 whilst awaiting the determination of
the appeal filed by the
Appellants. It is a move designed to preserve land held in the names of the
Companies for that
period of time. It is a move premised upon a sense of
accountability for the good administration of the estate under the control
of the trustees. The trustees had made out a good case for the orders sought
and so I granted them this morning.
ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
F.
O. Kabui
Judge
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