Application of Tsantis (in the Matter of Bauer)

[2010] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICATION OF TSANTIS (IN THE MATTER OF BAUER) [2010] FMCA 112

BANKRUPTCY – Application for declaration that applicant entitled to money paid to the Commonwealth in respect of a bankrupt estate.

Bankruptcy Act 1966 (Cth), s.254

Applicant: SONJA MARIA TSANTIS (IN THE MATTER OF ERNA MARIA BAUER)

File Number: SYG 2646 of 2009

Judgment of: Barnes FM

Hearing date: 8 February 2010

Delivered at: Sydney

Delivered on: 8 February 2010

REPRESENTATION

Solicitors for the Applicant: Sommerville & Co

ORDERS

IT IS DECLARED THAT:

1. Under s.254(3) of the Bankruptcy Act 1966 (Cth) the applicant as administrator of the estate of Ernestina Maria Bauer (also known as Erna Maria Bauer), is entitled to moneys paid to the Commonwealth by the Official Receiver in respect of the bankrupt estate of Erna Maria Bauer.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2646 of 2009

SONJA MARIA TSANTIS (IN THE MATTER OF ERNA MARIA BAUER)

Applicant

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a declaration under s.254(3) of the Bankruptcy Act 1966 (Cth) that Sonja Maria Tsantis is a person entitled to moneys that have been paid to the Commonwealth in relation to the bankrupt estate of her late mother, Erna Maria Bauer.

2. Ms Tsantis relies on an application and affidavit filed on 30 October 2009.  In addition an affidavit was filed in court today by Mr Staples, the solicitor for the applicant, attesting to notification to both the Official Receiver and the Commonwealth Attorney-General’s Department of the orders sought today.  The Official Receiver responded by letter dated 25 November 2009 advising that the Official Receiver would not be participating in the proceedings and that the Official Trustee had no objection to the orders being sought by Ms Tsantis.

3. The background to these proceedings is that the deceased Erna Maria Bauer (also known as Ernestina Maria Bauer) was declared bankrupt but her bankruptcy was annulled on 30 September 1992. Ms Tsantis discovered amongst her mother’s papers a letter from the Official Receiver dated 18 November 1992 and a cheque in favour of her mother in the sum of $50,000 together with an indication that there may be a surplus at a later date. The cheque was not banked and remained with the letter. After annulment of the deceased’s bankruptcy, surplus moneys in the amount of $55,824.58 were paid to the Consolidated Revenue of the Commonwealth on 9 February 1994. The Official Receiver has recently indicated to the applicant’s solicitors that the applicant needed to make an application to the court pursuant to s.254(3) claiming an entitlement to these funds. That is the reason for this application.

4. Ms Tsantis seeks a declaration on the basis that she is the daughter and also the administrator of the estate of her mother who died intestate between 30 October and 5 November 2008.  Included in the material before me is a copy of Letters of Administration granted to Ms Tsantis by the Supreme Court of New South Wales on 26 March 2009.  Annexed is an inventory of property which disclosed to the Supreme Court in accordance with the Probate and Administration Act1898 (NSW), the sum of $55,824.58 described as surplus funds paid by the Official Receiver in Bankruptcy to the Consolidated Revenue of the Commonwealth on 9 February 1994.

5. It was submitted and I am satisfied that the deceased was entitled to this amount.  There is evidence before the court about the applicant’s possible entitlement as daughter of the deceased, but it was clarified in submissions today that an order is sought on the basis that the applicant is entitled to the moneys as the administrator of her mother’s estate.  On all the evidence I am satisfied it has been established that the applicant is entitled to moneys paid to the Commonwealth by the Trustee of her mother’s bankrupt estate on the basis that she is the administrator of her late mother’s estate.  Ms Tsantis’s entitlement is an entitlement as administrator of the estate of Ernestina Maria Bauer, (also known as Erna Maria Bauer). 

6. The Court has power, both under the Federal Magistrates Act 1999 (Cth) and under the Bankruptcy Act 1966 (Cth), to make declarations in an appropriate case. I consider that this is an appropriate case in which to make such a declaration in the terms provided for in s.254(3) of the Bankruptcy Act. No other orders are sought by the applicant.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  22 February 2010