BANKRUPTCY - Bankruptcy Act 1966 (Cth) - application under s 178(1) by creditor against decision of primary judge dismissing application to set aside litigation funding agreement entered into by trustee of bankrupt's estate, and for inquiry under s 179 into conduct of trustee - whether primary judge erred in exercise of discretion under s 178(1) to refuse to set aside funding agreement - where trustee considered she had "carte blanche" to enter into funding agreement regardless of creditors' position - where major creditor adversely affected by entry into funding agreement - where many valuable assets of estate all burdened by funding agreement to pay funder 35% of all recoveries - where funder agreeing to fund only some but not all expected costs of recovery actions but entitled to recoup outlays and 35% of all net proceeds recovered
BANKRUPTCY - Bankruptcy Act 1966 (Cth) - whether primary judge erred in exercise of discretion when considering what order was "just and equitable" under s 178(1) - where primary judge required applicant to establish preferable course of conduct in the circumstances - where primary judge failed to consider additional fact arising after trustee's decision that valuable asset of estate would soon be realised - where proceeds of sale of asset would make funding agreement unnecessary - where funder on notice of application under s 178(1) to set aside funding agreement before it provided finance - where applicant creditor undertakes to repay funder all its outlays with interest if funding agreement set aside
TRUSTS AND TRUSTEES - Bankruptcy Act 1966 (Cth) - statutory and fiduciary duties of trustee - whether trustee disclosed information about administration of estate to creditors under s 19(1)(d) - where trustee supinely negligent in performance of duties - where trustee did not disclose to creditors proceeding with imminent hearing date and estate exposed to risk of adverse costs order connected to her decision to enter funding agreement - whether trustee administered estate as efficiently as possible by avoiding unnecessary expense under s 19(1)(j) - where trustee involved in multiple litigations and incurred substantial legal fees without receiving approval from creditors or seeking directions or advice from the Court - where trustee had insufficient knowledge of position of estate and issues in ongoing litigation - where trustee's reports to creditors gave little information about ongoing litigation - whether trustee gave adequate notice to creditors of intention to enter into funding agreement - whether trustee exercised her functions in a commercially sound way under s 19(1)(k) - where funding agreement entitled funder to agreed fee of 35% of the net proceeds recovered using funding - whether trustee breached duty to take informed view in deciding to enter into funding agreement - where trustee in conflict of interest and duty at time of entering into funding agreement
ADMINISTRATIVE LAW - procedural fairness - where ground of appeal that trustee denied creditor procedural fairness - whether principles of judicial review of administrative decisions apply to review of trustee's conduct under s 178 of Bankruptcy Act 1966 (Cth)
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