Avram v Official Trustee in Bankruptcy

[2001] FCA 1480

FEDERAL COURT OF AUSTRALIA

Avram v Official Trustee in Bankruptcy [2001] FCA 1480

Bankruptcy Act 1966 (Cth) s 149Z(1)

JOHN, THE DUKE OF AVRAM v THE OFFICIAL TRUSTEE IN BANKRUPTCY

T21 OF 2001

MARSHALL J

HOBART

22 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T21 OF 2001

BETWEEN:	JOHN, THE DUKE OF AVRAM APPLICANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	22 OCTOBER 2001
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1.   The appeal be dismissed with costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T21 OF 2001

BETWEEN:	JOHN, THE DUKE OF AVRAM APPLICANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT

JUDGE:	MARSHALL J
DATE:	22 OCTOBER 2001
PLACE:	HOBART

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“AAT”) made on 19 July 2001, in which the AAT affirmed the decision of the respondent to refuse the applicant an early discharge from his bankruptcy.

2. A sequestration order was made against the estate of the applicant by Registrar Wood on 11 June 1999. On 5 July 1999, the applicant filed his statement of affairs. When compiling his statement of affairs the applicant failed to disclose a beneficial interest he had in property. That beneficial interest was an interest in his deceased father’s estate after the death of his mother.

3. In the AAT’s Reasons for Decision, Deputy President Estcourt said at [2] and [3] that:

   “My decision in the matter is that, taking applicant’s case at its highest, Mr Avram will still, at the conclusion of these proceedings, be confronted with the undeniable fact that he has an interest in his father’s estate after the death of his mother and the undeniable fact that that interest was not disclosed in the statement of affairs at the time it was completed.

   The unfortunate result of that is that section 149Z, in my opinion, operates strictly to disqualify him from early discharge from bankruptcy on the basis that whether his failure to disclose was intentional or unintentional, and I accept that it was unintentional, the section operates to disqualify him and, in those circumstances, the only decision that I can make is that the decision under review is affirmed.”

4. The applicant took issue with the Deputy President’s claim that the applicant “has an interest in his father’s estate” (emphasis added). The applicant contended that at the time he compiled his statement of affairs he was bankrupt and did not have a beneficial interest in his deceased father’s estate because any interest held by the applicant had passed to his trustee in bankruptcy. I reject this contention. An acceptance of it would render otiose a central purpose of statements of affairs, which is to disclose a bankrupt’s financial interests.

5. It would also render nugatory s 149Z(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) which provides that:

   “(1)     A bankrupt is disqualified from early discharge if the bankrupt has at any time failed, whether intentionally or not, to disclose to the trustee the bankrupt’s beneficial interest in any property.”

6. The applicant claimed that he did not intentionally fail to disclose his interest in his father's estate. However, s 149Z(1) applies regardless of whether failure to disclose was intentional or not.

7. I consider that the AAT was correct as a matter of law in its application of s 149Z(1) of the Act to the circumstances of the applicant.

8. The applicant also submitted that the AAT erred in law because of actual bias in the Deputy President who heard the matter. Such bias was said to flow from the learned Deputy President’s use of an incorrect name in addressing the applicant. This submission is rejected. The Deputy President referred to the applicant as “Mr Avram”, and the transcript discloses that the applicant made no complaint about such nomenclature to the Deputy President. In any event, I fail to see how such manner of address could constitute bias.

9. I also reject the submission of the applicant that he was denied natural justice by not being permitted to cross-examine a witness who was not called to give evidence, being a witness who could have been called by the applicant. The applicant was unable to assist the Court by identifying any relevant issue on which he would have questioned the proposed witness if given the opportunity before the AAT.

10. The applicant has failed to disclose any error of law made by the AAT in coming to its decision or in the content of that decision. The appeal is dismissed with costs, including reserved costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             22 October 2001

Counsel for the Applicant:	The applicant appeared for himself.
Counsel for the Respondent:	Mr J Walters
Solicitor for the Respondent:	Piggott Wood & Baker
Date of Hearing:	22 October 2001
Date of Judgment:	22 October 2001