Ayoub and Insolvency and Trustee Service Australia (Inspector-General in Bankruptcy) - [2002] AATA 465

DECISION AND REASONS FOR DECISION [2002] AATA 465

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/789

GENERAL ADMINISTRATIVE DIVISION    )
          Re       JEANETTE AYOUB
  Applicant
          And     INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA (INSPECTOR-GENERAL IN BANKRUPTCY)
  Respondent

DECISION

Tribunal Ms G Ettinger – Senior Member

Date 17 June 2002
PlaceSydney

Decision        The Administrative Appeals Tribunal affirms the decision of the Inspector-General in Bankruptcy of the Insolvency and Trustee Service Australia ("ITSA"), dated 21 May 2001, refusing the application of Mrs Jeanette Ayoub, wife of bankrupt Mr Antonious Ayoub, that ITSA exercise a discretion pursuant to regulation 16.10 of the Bankruptcy Regulations 1996 to waive or remit the whole or part of the Official Trustee's fees, and pursuant to section 283 of the Bankruptcy Act 1966 that ITSA remit the realisations charge.
  ..............................................
  Ms G Ettinger
  Senior Member

CATCHWORDS
Bankruptcy - whether discretion should be exercised to remit or waive fees of Official Trustee and realisations charge - whether exceptional circumstances or undue hardship - decision affirmed.

LEGISLATION
Bankruptcy Act 1966 s 283
Bankruptcy (Estate Charges) Act 1997 ss 6,7,8
Bankruptcy Regulations 1996 rr 16.07(4), 16.10

CASES
Stanley Faulkner v Inspector General in Bankruptcy [1998] AATA 632
Re Scott Pty Ltd and Minister for Primary Industries and Energy (1994) 35 ALD 157
Re Teik Hok Lim and Department of Employment, Education and Training (1991) 22 ALD 201
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Exell v Inspector-General in Bankruptcy (2000) 30 AAR 320
Rukat v Rukat [1975] Fam 63

REASONS FOR DECISION

17 June 2002 Ms G Ettinger-Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Inspector-General in Bankruptcy of the Insolvency and Trustee Service Australia ("ITSA"), dated 21 May 2001, (T8), refusing the application of Mrs Jeanette Ayoub, wife of bankrupt Mr Antonious Ayoub, the exercise of a discretion pursuant to regulation 16.10 of the Bankruptcy Regulations 1996 ("the Bankruptcy Regulations") to waive or remit the whole or part of the Official Trustee's fees, and pursuant to section 283 of the Bankruptcy Act 1966 ("the Bankruptcy Act"), to remit the realisations charge.
The Applicant, Mrs Jeanette Ayoub did not attend the hearing and was represented by her son, Mr Charbel Ayoub who has been handling her appeal and had signed most of the correspondence dealing with the matter over the whole period.
The Respondent, ITSA, was represented by Ms A Pearce, solicitor of the Australian Government Solicitor.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:

Whether it was appropriate for the Tribunal to exercise its discretion pursuant to regulation 16.10 of the Bankruptcy Regulations 1996 to remit or waive the Official Trustee's fee paid by Mrs Ayoub on the basis that "undue hardship" would otherwise be suffered by her, or because of other "exceptional circumstances"; and
Whether it was appropriate for the Tribunal to exercise its discretion pursuant to section 283 of the Bankruptcy Act 1966,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ayoub and Insolvency and Trustee Service Australia (Inspector-General in Bankruptcy) [2002] AATA 465
Case: [2002] AATA 465
Decision Date: 17 June 2002

CaseChat Overview and Summary

In the matter of Ayoub and Insolvency and Trustee Service Australia (Inspector-General in Bankruptcy), the parties involved were Mr Charbel Ayoub and the Insolvency and Trustee Service Australia (ITSA), with the dispute centering on the remission or waiver of Official Trustee's fees and the realisations charge under bankruptcy regulations. The case was heard before a Tribunal. The central legal issue before the court was whether the discretion provided under regulation 16.10 of the Bankruptcy Regulations should be exercised to remit or waive the Official Trustee's fees and the realisations charge in Mr Ayoub's favour, considering the criteria set out in the regulations and the evidence presented.

The court examined the evidence and submissions from both parties, focusing on the accuracy of the figures for the Official Trustee's fees and the realisations charge. The court expressed dissatisfaction with the preparation of the case by the ITSA, noting discrepancies in the figures provided. Ultimately, the court accepted the figures presented by the ITSA case manager, Mr Trinh, as the most accurate. Additionally, the court considered the impact on Mrs Ayoub, who did not attend the hearing due to health issues, but whose husband was deemed capable of representing her interests.

In its decision, the Tribunal found that the criteria for remission or waiver of fees under regulation 16.10 of the Bankruptcy Regulations were not sufficiently met by the evidence presented. The court did not find the circumstances to be exceptional or the hardship undue enough to warrant the exercise of the discretion in favour of the Ayoubs. The court thus decided against remitting or waiving the Official Trustee's fees or the realisations charge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Ayoub submitted that if the fees were waived as claimed, his mother would have less hardship and less of a burden and would be able to stay in the house and continue to pay her mortgage. It was noted at the hearing that the mortgage payments were not in arrears. EVIDENCE OF MR YEN THIEU TRINH – ITSA CASE MANAGER As Ms Pearce was unable to assist with detail related to the matter before the Tribunal, Mr Trinh gave evidence before the Tribunal to clarify figures as calculated. He referred to Exhibit R4 (document B), $8,556.73 and Exhibit R5 (document C), $5,397.49, noting that the difference between these was $3,159.24 from which $2,500 interest not paid would be deducted. He said that therefore the difference was $659.24. Mr Trinh undertook to refund $3,159.24 to the Ayoubs within seven days of the hearing irrespective of any finding the Tribunal made. I noted that further that document A, (Exhibit R3), was also before the Tribunal with a different set of calculations. I was satisfied from the evidence that the most recent calculations made on 11 March 2002 and documented in Exhibit R5, were the most accurate figures relating to this matter.SUBMISSIONS AND CONCLUSIONS In coming to a decision regarding whether to exercise the discretion pursuant to regulation 16.10 of the Bankruptcy Regulations to waive or remit the whole or part of the Official Trustee's fees, and similarly pursuant to section 283 of the Bankruptcy Act with regard to the realisations charge, I had to take into account the evidence before me, the legislation and case law, and the submissions of the parties. I was mindful that Mr and Mrs Ayoub reside in the matrimonial home at 4 Atkins Road, Ermington, New South Wales 2115, in which they hold title jointly, noting also that Mr Ayoub was made bankrupt on 8 September 1999. I express my displeasure with regard to the preparation of this matter by the Respondent. Ms Pearce did not have information important to the proper conduct of this matter prepared. Several different figures were provided as the numbers calculated for the Official Trustee's fees and the realisations charge. In that regard, although I was unable to verify the figures, after several adjournments during the hearing, and with the assistance of Case Manager Mr Trinh, I accepted that $11,421.97 (Exhibit R5) was calculated as the "prescribed amount" pursuant to regulation 16.07(4) of the Bankruptcy Regulations paid to the Official Trustee as his fees, and that $4,976.91 (Exhibit R5), was the amount for the realisations charge. I say further that I was surprised that Mrs Ayoub did not attend at the Tribunal to give evidence as it was she who was the Applicant. Mr Charbel Ayoub told me that she has swollen legs, that she is nervous, and he told me that she is on a disability support pension. However, the only medical certificates before me were in a bundle of documents at Exhibit A1, of which one was dated 1 November 2001 and the other, 21 January 2002. On 1 November 2001, Dr Shanthini Tambimuttu of the West Ryde Medical Centre indicated that Mrs Ayoub suffered from varicose veins. A further certificate of the same practitioner dated 21 January 2002 indicated again that Mrs Ayoub had varicose veins, neck and back pain, and could not work. I was not convinced from the evidence before me that she could not have attended at the Tribunal accompanied by Mr Charbel Ayoub. However, as he has been involved in dealing with her case throughout, I was satisfied that he could so on her behalf before this Tribunal. Accordingly I did not take into account her non-attendance at the hearing in the making of the decision.

Decision

Reasons for decision

I was satisfied from the evidence that the most recent calculations made on 11 March 2002 and documented in Exhibit R5, were the most accurate figures relating to this matter.SUBMISSIONS AND CONCLUSIONS In coming to a decision regarding whether to exercise the discretion pursuant to regulation 16.10 of the Bankruptcy Regulations to waive or remit the whole or part of the Official Trustee's fees, and similarly pursuant to section 283 of the Bankruptcy Act with regard to the realisations charge, I had to take into account the evidence before me, the legislation and case law, and the submissions of the parties. I was mindful that Mr and Mrs Ayoub reside in the matrimonial home at 4 Atkins Road, Ermington, New South Wales 2115, in which they hold title jointly, noting also that Mr Ayoub was made bankrupt on 8 September 1999. I express my displeasure with regard to the preparation of this matter by the Respondent. Ms Pearce did not have information important to the proper conduct of this matter prepared. Several different figures were provided as the numbers calculated for the Official Trustee's fees and the realisations charge. In that regard, although I was unable to verify the figures, after several adjournments during the hearing, and with the assistance of Case Manager Mr Trinh, I accepted that $11,421.97 (Exhibit R5) was calculated as the "prescribed amount" pursuant to regulation 16.07(4) of the Bankruptcy Regulations paid to the Official Trustee as his fees, and that $4,976.91 (Exhibit R5), was the amount for the realisations charge. I say further that I was surprised that Mrs Ayoub did not attend at the Tribunal to give evidence as it was she who was the Applicant. Mr Charbel Ayoub told me that she has swollen legs, that she is nervous, and he told me that she is on a disability support pension. However, the only medical certificates before me were in a bundle of documents at Exhibit A1, of which one was dated 1 November 2001 and the other, 21 January 2002. On 1 November 2001, Dr Shanthini Tambimuttu of the West Ryde Medical Centre indicated that Mrs Ayoub suffered from varicose veins. A further certificate of the same practitioner dated 21 January 2002 indicated again that Mrs Ayoub had varicose veins, neck and back pain, and could not work. I was not convinced from the evidence before me that she could not have attended at the Tribunal accompanied by Mr Charbel Ayoub. However, as he has been involved in dealing with her case throughout, I was satisfied that he could so on her behalf before this Tribunal. Accordingly I did not take into account her non-attendance at the hearing in the making of the decision. I moved then to decide whether the discretion to remit or waive the Official Trustee's fees should be exercised in Mrs Ayoub's favour taking into account the tests in regulation 16.10 of the Bankruptcy Regulations.WHETHER THE DISCRETION PURSUANT TO REGULATION 16.10 OF THE BANKRUPTCY REGULATIONS SHOULD BE EXERCISED TO REMIT OR WAIVE THE OFFICIAL TRUSTEE'S FEES IN FULL OR IN PART

Ratio Decidendi

Legal Principle Established

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