Application By Official Receiver, Re Roberts
[2012] FMCA 327
•16 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| APPLICATION BY OFFICIAL RECEIVER, RE ROBERTS | [2012] FMCA 327 |
| BANKRUPTCY – Annulment of bankruptcy – bankrupt’s estate already under administration under debtor’s petition – sequestration order should not have been made – defective search of National Personal Insolvency Index – annulment order made – no orders as to costs, including trustee’s costs, expenses and remuneration. |
| Bankruptcy Act 1966 (Cth), s.153B(1) |
| Application by Official Receiver, Re Roughley [2012] FMCA 324 |
| Applicant: | OFFICIAL RECEIVER |
| File Number: | SYG 594 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 16 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Ronayne Ronayne Lawyers (city agent) |
| Solicitors for the Applicant: | Galilee Solicitors |
ORDERS
Service of notice of the application for annulment on the debtor and his creditors is dispensed with.
The sequestration order made on 25 November 2011 against the estate of David G Roberts also known as David Geoffrey Roberts, in proceedings (P)SYG1969/2011 is annulled pursuant to s.153B(1) of the Bankruptcy Act 1966 (Cth).
No orders as to costs in relation to the application or in relation to the costs, charges and expenses of any administration arising under that sequestration order.
The debtor, David Geoffrey Roberts, has liberty to apply for further orders in relation to orders 2 and 3.
The applicant must serve a copy of this order on the trustee and former trustee of the debtor, and on the debtor within 5 working days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 594 of 2012
| OFFICIAL RECEIVER |
Applicant
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 16 March 2012 by the Official Receiver with no named respondents, in which the Official Receiver seeks the following orders:
1.That the bankruptcy of David G Roberts also known as David Geoffrey Roberts arising pursuant to administration number NSW 7500/11/3 (“the Second Bankruptcy”) be annulled in accordance with section 153B of the Bankruptcy Act 1966.
2.That the Trustees of the Second Bankruptcy be entitled to recover costs incurred in respect of the administration of the Second Bankruptcy from the bankruptcy of David Geoffrey Roberts arising pursuant to administration number NSW 6975/11/2 (“the First Bankruptcy”) in accordance with the Bankruptcy Act 1966.
3.That the obligations of the Trustees of the Second Bankruptcy in respect of the administration of the Second Bankruptcy under the Bankruptcy Act 1966 be dispensed with.
4.That the costs of the Applicant Creditor in respect of the petition for the First Bankruptcy be payable from the Second Bankruptcy in accordance with the Bankruptcy Act 1966 as if the petition had been dismissed on 25 November 2011.
5.Such other or further orders as the Court deems fit.
The application was referred to me for hearing as duty bankruptcy judge, concurrently with another similar matter in which the Official Receiver was represented by the same solicitor. I made the same orders as I made in that proceeding, and for the same reasons which I have published in that matter (see Application by Official Receiver, Re Roughley [2012] FMCA 324). I make the following additional observations.
The bankruptcy which is sought to be annulled arose from a sequestration order made by a Registrar on 25 November 2011 on the first return date of a creditor’s petition, and in the absence of the debtor. The petition was filed by Citigroup Pty Ltd (“Citigroup”), and was based on a judgment against Mr Roberts obtained in the Local Court on 8 March 2011 in the amount of $23,340.08 plus additional interest. It identified the debtor as “David G Roberts also known as David Geoffrey Roberts”. As in Roughley, the Registrar was presented with an affidavit of search by Citigroup’s solicitor of the National Personal Insolvency Index, which purported to show that there were no other bankruptcy proceedings pending against Mr Roberts and that he was not already bankrupt. The Registrar’s order noted that a consent to act as trustee had been signed by Mr Whitton.
Subsequently, it was discovered that the same debtor, under his same full name David Geoffrey Roberts, had become bankrupt on 7 November 2011, consequent upon the acceptance of a debtor’s petition. Mr Struthers had accepted appointment as trustee of his bankrupt estate. The failure to bring these facts to the Registrar’s attention is said to arise from the same imperfect searches as had been performed in Roughley.
For the same reasons as I gave in Roughley, it is now clear that the second bankruptcy should be annulled.
For the same reasons as I gave in Roughley, it would not be appropriate for me to make any costs orders against Mr Roberts or against his estate in bankruptcy which is being administered by Mr Struthers, in the absence of the joinder of Mr Roberts as a respondent to the application, and of service of notice of the proceedings on all his creditors, and of evidence showing that they would not be disadvantaged by such orders. I also note that Mr Struthers has opposed any such orders, in a letter which was tendered to me. I therefore refuse to make the second or fourth orders sought in the application.
For the same reasons as I gave in Roughley, I am not persuaded that I should make the third order sought in the application.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 26 April 2012
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