FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cant v Gelman [2022] FedCFamC2G 383
File number(s): MLG 261 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 19 May 2022 Catchwords: BANKRUPTCY – Application of trustee under s.146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – no statement of affairs received – orders that the distribution of dividends proceed as if bankrupt had filed a statement of affairs as required by the Act – application granted Legislation: Bankruptcy Act 1966 (Cth), ss 19(1), 32, 54(1), 77CA, 140, 145(1), 146, 281
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 11.01(4), 13.06
Cases cited: Barnet v Zhang [2017] FCA 924
Quin as Trustee of the Bankrupt Estate of Philip Chill [2020] FCCA 2652
Roufeil (Trustee), in the matter of Jarvie (Bankrupt) [2015] FCA 232Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 9 May 2022 Date of hearing: 10 May 2022 Place: Melbourne Counsel for the Applicant: Ms Umbers Solicitor for the Applicant: White Cleland The Respondent: No appearance by or on behalf of the Respondent ORDERS
MLG 261 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANTHONY ROBERT CANT
Applicant
AND: VIVIEN SUSAN GELMAN
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
19 MAY 2022
THE COURT ORDERS:
1.Pursuant to s.146 of the Bankruptcy Act 1966 (Cth) (Act), and subject to Orders 2 to 4, the distribution of a first and final dividend to creditors of the bankrupt estate of Vivien Susan Gelman (Bankrupt Estate), who have proved their debts before the time of declaration or distribution at order 3 proceed in accordance with Division 5 of Part VI of the Act as if Vivien Susan Gelman (Bankrupt) had filed a statement of affairs and those creditors had been stated to be creditors in it.
2.On a date that is not before 16 June 2022, the Applicant shall cause a notice of intention to declare a first and final dividend in the Bankrupt Estate to be published in The Age and The Australian newspapers.
3.The Applicant shall not declare or distribute a first and final dividend in the Bankrupt Estate until at least 21 days have elapsed after publication of the notice pursuant to order 2.
4.No distribution is to be made until a search of the National Personal Insolvency Index,
to be conducted within 48 hours of any proposed distribution, which confirms that no statement of affairs has been lodged by the Bankrupt.
5.The Applicant withhold a sum sufficient to pay to the Inspector General the amount of the interest charge and realisation charge payable from the estate and any interest payable pursuant to s.281 of the Act.
6.Any distribution of a dividend from the Bankrupt Estate be subject to the entitlement of the Applicant to retain an amount sufficient for payment of the costs of administration of the Bankrupt Estate (which will include, by way of disbursements, the Applicant’s legal costs).
7.The Applicant’s costs of this application be paid from the Bankrupt Estate in accordance with the Act.
8.Liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
INTRODUCTION
On application of the trustee of the bankrupt estate of Vivien Susan Gelman (Bankrupt Estate), Mr Anthony Robert Cant (Trustee), the Court makes orders pursuant to s.146 of the Bankruptcy Act 1966 (Cth) (Act). Those orders permit the distribution of a first and final dividend amongst those creditors of the Bankrupt Estate who prove their debts to proceed in accordance with Division 5 of Part IV of the Act as if Vivien Susan Gelman (Bankrupt) had filed a statement of affairs and those creditors had been stated to be creditors in her bankruptcy. The reasons for judgment follow.
FACTUAL CONTEXT
On 25 February 2021, an order was made for the sequestration of the Bankrupt Estate. The order was made upon petition of Owners Corporation No 1 PS512041G. Also on 25 February 2021, the Trustee was appointed trustee of the Bankrupt Estate.[1]
[1] Affidavit of Mr Anthony Robert Cant, dated 25 January 2022 (First Affidavit of Mr Cant), [2], ARC-01 and ARC-03.
Attempts to communicate with the Bankrupt
On or about 5 March 2021, the Trustee sent a letter dated 5 March 2021 to the Bankrupt (by registered post, to Unit 3, 693-697 Orrong Road, Toorak in the State of Victoria - the address believed to be the Bankrupt’s residence and, according to the land title search, the property for which she was the registered proprietor as at 25 February 2021)[2] which enclosed a copy of the sequestration order and certificate of appointment, explained the responsibilities of a bankrupt under the Act and requested that the Bankrupt file a bankruptcy form which incorporated a statement of affairs (bankruptcy form). Also enclosed was a copy of the bankruptcy form, delivery of property and records form and general third party written authority form.[3] On or about 29 April 2021, the Trustee received the 5 March 2021 letter from Australia Post marked “return to sender”.[4]
[2] First Affidavit of Mr Cant, ARC-02.
[3] First Affidavit of Mr Cant, ARC-03.
[4] First Affidavit of Mr Cant, ARC-04.
On 9 and 10 March 2021, an employee of the Trustee attempted to contact the Bankrupt by telephone. The file notes record that on the first occasion the Bankrupt did not answer and an urgent message was left to return the call regarding her bankruptcy and on the second occasion the mailbox was full and a message could not be left.[5]
[5] First Affidavit of Mr Cant, ARC-05 and ARC-06.
On 15 March 2021, the Bankrupt contacted the office of the Trustee by telephone and spoke with a Mr Manuel Hanna (Director of the office of the Trustee). The file note records that the Bankrupt informed Mr Hanna that she was ringing to have her bank accounts unfrozen, refused to acknowledge her bankruptcy status and advised that she did not owe any money and had not “received anything”. According to the file note, the Bankrupt refused to confirm her residential address and Mr Hanna encouraged her to engage a lawyer to assist her.[6]
[6] First Affidavit of Mr Cant, ARC-07.
On 23 March 2021, in response to attempts to contact her, a Ms Renee Di Carlo of the Trustee’s office received a telephone call from a mobile telephone number and the caller identified as the Bankrupt. Ms Di Carlo deposes to a discussion with the Bankrupt which, according to her contemporaneous file note, included the following:
(a)the Bankrupt advised she had not received the 5 March 2021 letter;
(b)the Bankrupt said she did not use email and ultimately confirmed her residential address as Unit 3, 693-697 Orrong Road, Toorak in the State of Victoria;
(c)the Bankrupt disputed having been bankrupted on petition of the owners corporation associated with her confirmed residential address, advised she wanted a title search undertaken on every single property in the complex because she did not believe the owners corporation was legitimate and even existed;
(d)Ms Di Carlo advised the Bankrupt that the matter had proceeded before the Court, she had been made bankrupt and would have received documentation about this, she was required to complete the bankruptcy form including the statement of affairs sent under cover of the 5 March 2021 letter and invited the Bankrupt to come in to their office for an explanation of what was required, to minimise further costs and assist the Bankrupt in finalising her bankruptcy. The call ended when the Bankrupt proceeded to “hang up on” Ms Di Carlo.[7]
[7] Affidavit of Ms Renee Di Carlo dated 31 January 2022, [2]-[6] and RDC-01.
On or about 24 March 2021, the Trustee caused a letter enclosing the 5 March 2021 letter to be delivered to the Bankrupt (by hand, at the residential address confirmed in conversation with Ms Di Carlo).[8] As personal contact with the Bankrupt was not able to be made, the letter was left in the Bankrupt’s mailbox at the residential address.[9]
[8] First Affidavit of Mr Cant, ARC-08.
[9] First Affidavit of Mr Cant, ARC-09.
On 31 March 2021, the Trustee sent a further letter to the Bankrupt (by express post, at the residential address confirmed in conversation with Ms Di Carlo). That letter: again requested the Bankrupt provide the completed bankruptcy form; referred to the letters of 5 and 24 March 2021 letters and the Bankrupt’s telephone discussions with Mr Hanna and Ms Di Carlo; noted that the Bankrupt had been advised to seek legal advice and to attend the Trustee’s office so that she could be assisted in ending her bankruptcy.[10] By file note of an employee of the Trustee, this further letter was subsequently confirmed by Australia Post as delivered and left in a safe place.[11]
[10] First Affidavit of Mr Cant, ARC-10.
[11] First Affidavit of Mr Cant, ARC-14.
On 7 April 2021, the Bankrupt telephoned Ms Di Carlo. By the file note, the Bankrupt wanted to know who had been putting mail in her mailbox and Ms Di Carlo responded to confirm she had personally delivered the 24 March 2021 letter to ensure the Bankrupt would receive it and informed the Bankrupt she wished to assist her but the Bankrupt hung up.[12]
[12] First Affidavit of Mr Cant, ARC-11.
On 15 April 2021, the Trustee received a letter from the Bankrupt dated 12 April 2021:
Dear Mr Cant,
Re: Letter dated 31 March 2021
The letter that you have sent includes information that is not correct.
May I suggest that you verify al of the information that you have been given regarding Owners Corporation No.1 PS512041G. Please note that I am not a party to an Owners Corporation at all.
In addition, I do not have a contract with Select Strata Communities, which is where Tax Invoices that relate to the above Plan of subdivision number have been coming from.
Yours sincerely,
V.Gelman
(sic.)[13]
[13] First Affidavit of Mr Cant, ARC-12.
On 21 April 2021, the Trustee filed an application for the Official Receiver to issue an application requesting a notice be issued to the Bankrupt (s.77CA notice) requiring the Bankrupt to provide a statement of affairs within 14 days of being provided with the s.77CA notice.[14]
[14] First Affidavit of Mr Cant, ARC-13.
On 4 May 2021, the Trustee sent a further letter to the Bankrupt (by post, to the same residential address) in which the Trustee advised that based on Victoria Land Titles Office records the Bankrupt was also the sole registered proprietor of two additional properties and requested the Bankrupt provide copies of insurance for the other properties by 18 May 2021.[15]
[15] First Affidavit of Mr Cant, ARC-15.
On or about 21 May 2021, the Trustee received notice from the Official Receiver that the s.77CA notice was unable to be served.[16]
[16] First Affidavit of Mr Cant, ARC-16.
On 24 May and 10 June 2021, the Trustee made further applications pursuant to s.77CA. Only the application lodged on 10 June 2021 was actioned due to an administrative error.[17]
[17] First Affidavit of Mr Cant, [21], ARC-17 and ARC-18.
On 9 August 2021, the Trustee’s solicitor (White Cleland Pty. Ltd.) sent a letter to the Bankrupt (by post, to the same residential address) which stated that the Trustee’s office had attempted to communicate with her on numerous occasions and also informed her of her rights and responsibilities as a bankrupt. That letter also placed the Bankrupt on notice that, in the event she did not complete the bankruptcy form and lodge it with the Official Receiver, the Trustee would be left with no choice than to file an application with this Court pursuant to s.146 of the Act.[18] The Trustee deposed that there was no response to that letter.[19]
[18] First Affidavit of Mr Cant, ARC-19.
[19] First Affidavit of Mr Cant, [25].
On 9 September 2021, the Trustee received correspondence from the Official Receiver which stated that several attempts at personal service of the s.77CA application were unsuccessful.[20]
[20] First Affidavit of Mr Cant, ARC-20.
On 3 December 2021, the Trustee’s solicitor sent a further letter to the Bankrupt (by post, to the same residential address) which stated that, absent contact from the Bankrupt and the completed bankruptcy form being filed with the Official Receiver, the Trustee intended to issue the proceedings in this matter. Among other things, that letter reminded the Bankrupt of her obligations under the Act including to file the statement of affairs and to cooperate with the Trustee and requested urgent contact to avoid further unnecessary costs.[21]
[21] First Affidavit of Mr Cant, ARC-21.
Identification of and notice to creditors
The Trustee deposed that, upon his appointment, he made various enquiries and actions to identify the creditors of the Bankrupt, including:
a.Searches of records and enquiries made with the Land Use Victoria, Australian Securities and Investments Commission ("ASIC") and the Australian Taxation Office ("ATO")
b.Enquiries with the water authority associated with the Bankrupt's property, utility companies, and local councils.[22]
[22] First Affidavit of Mr Cant, [28].
On 25 January 2022, the Trustee deposed that he had at that time identified two creditors:
a.Owners Corporation PS512041 G, the Petitioning creditor - owed $38,149.00;
b.Australian Taxation Office - owed $19,840.50.[23]
[23] First Affidavit of Mr Cant, [30].
On 4 February and 28 March 2022, the Trustee caused advertisements to be placed in The Age and The Australian newspapers, respectively. Those advertisements invited creditors and potential creditors or claimants in the Bankrupt Estate to urgently contact the Trustee’s office for the purposes of paying a first and final dividend. It stated a “return date” of 10 May 2022.[24] The Trustee deposed that he had not received any contact in response to those advertisements as at the date of his most recent affidavit filed with the Court.[25]
[24] Affidavit of Mr Anthony Cant dated 27 April 2022 (Second Affidavit of Mr Cant), [3]-[4], ARC-25 and ARC-26.
[25] Second Affidavit of Mr Cant, [5].
The Trustee had not received any direct response to the application from the Bankrupt as at the date of his most recent affidavit filed with the Court.[26]
[26] Second Affidavit of Mr Cant, [6].
Procedural history
On 3 February 2022, this application was filed with the Court. It named the Bankrupt as respondent. The application was supported by two affidavits (of the Trustee, sworn 25 January 2022, and of Ms Di Carlo, sworn 31 January 2022). The application noted a return of 10.00am on 10 May 2022.
On 9 February 2022, a copy of those materials under cover of letter dated 8 February 2022 was sent by post to the Bankrupt at Unit 3, 693-697 Orrong Road, Toorak in the State of Victoria.[27] On 28 February 2022, the Trustee’s office received a handwritten letter dated 23 February 2022 which referred to the letter of 8 February 2022, said “this is illegal” and was signed by a “V.Gelman”.[28] On 28, 29 and 30 March 2022, three unsuccessful attempts at personal service were made on behalf of the Trustee at that same residential address.[29]
[27] Affidavit of Ms Alexandra Margaret Taylor dated 26 April 2022.
[28] Affidavit of Ms Ersilia Barbone dated 26 April 2022, EB-1.
[29] Affidavit of Ms Vivian Boin dated 19 April 2022.
No response was received by the Court.
On 10 May 2022, there was no appearance by or on behalf of the Bankrupt. At the time of this judgment, the Court records reflect no notice of address for service or opposition or indeed any other communication by or on behalf of the Bankrupt.
CONSIDERATION
Application heard ex parte
It was unnecessary for the Bankrupt to be named as a party to the application or served with it.[30] Nonetheless, the joinder of the Bankrupt as a respondent does not preclude the Court from deciding the proceeding.[31] Even if not strictly required, on the evidence before the Court the Bankrupt has received notice of the application and return date.[32]
[30] Barnet v Zhang [2017] FCA 924, [28]-[29].
[31] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.01(4).
[32] Roufeil (Trustee), in the matter of Jarvie (Bankrupt) [2015] FCA 232, [12]-[14].
The Bankrupt did not appear before the Court on 10 May 2021, request an adjournment or otherwise communicate with the Court.
The Trustee requested the Court proceed, consistent with its duty to administer the estate as efficiently as possible, including by avoiding unnecessary expense and in a commercially sound way (s.19(1)(j)-(k) of the Act).
In all of the circumstances, the Court determined to proceed to hear the Trustee in relation to the claim for relief in the proceeding in the Bankrupt’s absence.[33]
Section 146 application
[33] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06.
Applicable principles
Where a sequestration order is made, the person against whose estate it is made is obliged by s.54(1) of the Act to make and file a statement of affairs with the Official Receiver and to furnish a copy of that statement on the trustee.
The Act provides for the Official Receiver to obtain information and evidence. By written notice given under s.77CA of the Act, the Official Receiver may require the bankrupt to give the Official Receiver a statement of their affairs within 14 days of the notice.
The scheme at Part VI of the Act is to enable, where possible, an efficient distribution of dividends to creditors from the proceeds of property that is identified, recovered and realised by the trustee. Pursuant and subject to the provisions of s.140, the trustee is required to declare and distribute dividends amongst the creditors who have proved their debts with all convenient speed. That is, also further to the Trustee’s overarching duty of efficient administration at s.19(1).
Where all (or a sufficient amount) of a bankrupt’s property has been realised to enable a final dividend to be declared, a trustee shall declare and distribute a final dividend in accordance with s.145(1). There are also provisions for giving notice with respect to declaration of final dividends and a prohibition on declaring final dividends until “after the expiration of 21 days after the expiration of the period specified in the notice” (s.145(3) and (6)).
When a bankrupt fails to file a statement of affairs, s.146 of the Act provides:
Distribution of dividends where bankrupt fails to file statement of affairs
Where a bankrupt has failed to file a statement of his or her affairs as required by this Act, the Court may, on the application of the trustee, upon such terms as it thinks fit, order that distribution of dividends amongst the creditors who have proved their debts shall proceed in accordance with this Division as if the bankrupt had filed a statement of his or her affairs and those creditors had been stated to be creditors in it.
The authorities on the purpose and application of s.146 were helpfully summarised by Kelly J in Quin as Trustee of the Bankrupt Estate of Philip Chill [2020] FCCA 2652 at [31]-[32]:
In Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968, Gyles J held at [4] that the purpose of s 146 was “to give the Court the means of ensuring that the absence of a statement of affairs does not prejudice those with an interest in the bankrupt’s affairs.” In Barnet (Trustee), in the matter of Zhang (Bankrupt) v Zhang [2017] FCA 924 at [22], Lee J observed that s 146 was “intended to facilitate the distribution of dividends among the creditors of the bankrupt in circumstances where the trustee has not had the benefit of a statement of affairs prepared by the bankrupt”: citing Re Sturt; Ex parte Official Trustee in Bankruptcy (2001) 117 FCR 1 at 4 [14] per Sackville J.
In Re Sturt; Ex parte Official Trustee in Bankruptcy (2001) 117 FCR 1 at [19], Sackville J held that Court must be satisfied that it is appropriate to make an order. His Honour stated: “The Court may need to be satisfied, for example, that creditors have been notified of the application and have had an opportunity to be heard (although ordinarily the application would be made in the interests of creditors). As in this case, the Court might require evidence that the trustee has taken appropriate steps to ascertain whether there are creditors, other than those who have come to its attention by filing a proof of debt or otherwise.” This reasoning was endorsed in Zhang [2017] FCA 924.
Has the Bankrupt failed to file a statement of affairs?
On the evidence before the Court, the Bankrupt has failed to file a statement of affairs as required by the Act. More than one year has elapsed since the Bankrupt was first requested to file a statement of affairs. The Trustee has sent numerous letters, including through its solicitors, to a residential address confirmed by the Bankrupt and to which she has acknowledged receipt of at least two such letters. The Trustee has also attempted (and on occasion succeeded in) telephone contact with the Bankrupt to explain her obligations and offered reasonable assistance. I am satisfied that the Bankrupt was notified and regularly reminded of her obligation to file the statement of affairs and, notwithstanding those attempts made by the Trustee, she has not done so.
For completeness, the Bankrupt has not appeared before this Court or effectively challenged the obligation to file a statement of affairs.
Accordingly, the jurisdiction to make an order pursuant to s.146 of the Act is engaged.
Discretionary considerations
The further delay in distribution of funds from the Bankrupt Estate operates to the prejudice of the known creditors. The prejudice arises by reason of the failure of the Bankrupt to file a statement of affairs which would, but for an order under s.146, present as an obstacle to the declaration and payment of a final dividend that the Trustee is otherwise in a position to pay.
As to the terms of an order the Court may make, in the absence of a statement of affairs completed by the Bankrupt, there is naturally some uncertainty as to the identity of the creditors in the Bankrupt’s Estate. As at 3 February 2022, the Trustee had identified two creditors and intended to continue its efforts by placing a further advertisement in each of The Age and The Australian (and sought orders to that effect).
In all of the circumstances, it is appropriate to make orders as sought with one exception - that the orders shall not take effect on a date that is before 16 June 2022.
For completeness, the Trustee’s obligation to distribute as dividend the moneys of the Bankrupt Estate is subject to the requirement to withhold a sum sufficient to pay the Inspector General the amount of the interest charge and realisation charge payable from the estate and any interest payable pursuant to s.281 of the Act. Distribution of a dividend from the Bankrupt Estate is also subject to an entitlement that the Trustee may retain an amount sufficient to pay the costs of the administration of the Bankrupt Estate including the Trustee’s legal costs by way of disbursements (s.140(2)).
An order should also be made that the Trustee’s costs of this application be taxed and paid from the Bankrupt Estate in accordance with s.32 of the Act.
CONCLUSION
Had the Bankrupt completed the statement of affairs in a timely way as required by the Act, the matter would have been finalised some time ago and significant additional costs would have been avoided. The Trustee was obliged to take steps appropriate to recover property for the benefit of the Bankrupt Estate and to administer the estate as efficiently as possible, including by avoiding any unnecessary expense and performing functions in a commercially sound way.
In this case, the Trustee took all reasonable steps to obtain a statement of affairs that the Bankrupt failed to file and there is no lawful or valid justification or explanation for that failure. Had the Trustee not taken the step in filing this application, the costs of administration of the Bankrupt Estate would only have increased.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 19 May 2022
- AGLC
- Cant v Gelman [2022] FedCFamC2G 383
- Case
- [2022] FedCFamC2G 383
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the trustee had acted within their authority under the Act in applying for the distribution of dividends without the statement of affairs and whether the application could proceed in the absence of the bankrupt. The court also considered whether the trustee had acted reasonably and efficiently in managing the bankrupt estate.
The court reasoned that the trustee had a duty to administer the estate efficiently, which included avoiding unnecessary expenses and ensuring that functions were performed in a commercially sound manner. The court found that the trustee had taken all reasonable steps to obtain the statement of affairs, which the bankrupt failed to provide. As the bankrupt did not appear or communicate with the court, the application was heard ex parte. The court determined that the application could proceed in the bankrupt's absence, given the trustee's duty to act efficiently and the lack of any valid reason for the bankrupt's failure to file the statement of affairs. The court concluded that proceeding with the application was necessary to avoid further unnecessary costs and to ensure the efficient administration of the estate.
The court granted the application, allowing the distribution of dividends to proceed as if the bankrupt had filed a statement of affairs as required by the Act. Additionally, the court ordered that the trustee's costs of the application be taxed and paid from the bankrupt estate in accordance with section 32 of the Act. The court highlighted that the matter could have been finalised sooner and with fewer costs if the bankrupt had complied with the statutory requirement to file a statement of affairs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 10 May 2022, there was no appearance by or on behalf of the Bankrupt. At the time of this judgment, the Court records reflect no notice of address for service or opposition or indeed any other communication by or on behalf of the Bankrupt. CONSIDERATIONApplication heard ex parte It was unnecessary for the Bankrupt to be named as a party to the application or served with it.[30] Nonetheless, the joinder of the Bankrupt as a respondent does not preclude the Court from deciding the proceeding.[31] Even if not strictly required, on the evidence before the Court the Bankrupt has received notice of the application and return date.[32] [30] Barnet v Zhang [2017] FCA 924, [28]-[29].[31] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.01(4).[32] Roufeil (Trustee), in the matter of Jarvie (Bankrupt) [2015] FCA 232, [12]-[14]. The Bankrupt did not appear before the Court on 10 May 2021, request an adjournment or otherwise communicate with the Court. The Trustee requested the Court proceed, consistent with its duty to administer the estate as efficiently as possible, including by avoiding unnecessary expense and in a commercially sound way (s.19(1)(j)-(k) of the Act). In all of the circumstances, the Court determined to proceed to hear the Trustee in relation to the claim for relief in the proceeding in the Bankrupt’s absence.[33] Section 146 application [33] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06.Applicable principles Where a sequestration order is made, the person against whose estate it is made is obliged by s.54(1) of the Act to make and file a statement of affairs with the Official Receiver and to furnish a copy of that statement on the trustee. The Act provides for the Official Receiver to obtain information and evidence. By written notice given under s.77CA of the Act, the Official Receiver may require the bankrupt to give the Official Receiver a statement of their affairs within 14 days of the notice. The scheme at Part VI of the Act is to enable, where possible, an efficient distribution of dividends to creditors from the proceeds of property that is identified, recovered and realised by the trustee. Pursuant and subject to the provisions of s.140, the trustee is required to declare and distribute dividends amongst the creditors who have proved their debts with all convenient speed. That is, also further to the Trustee’s overarching duty of efficient administration at s.19(1). Where all (or a sufficient amount) of a bankrupt’s property has been realised to enable a final dividend to be declared, a trustee shall declare and distribute a final dividend in accordance with s.145(1). There are also provisions for giving notice with respect to declaration of final dividends and a prohibition on declaring final dividends until “after the expiration of 21 days after the expiration of the period specified in the notice” (s.145(3) and (6)).