Challen v Bendeich

[1999] FCA 845

FEDERAL COURT OF AUSTRALIA

Challen v Bendeich [1999] FCA 845

BANKRUPTCY – where trustee in bankruptcy made retrospective assessments of bankrupt’s income – review by AAT applied incorrect legislation – whether s 139W(1) Bankruptcy Act 1966 allows retrospective assessments of income – relevance of legislative amendments to interpretation of legislative provisions prior to amendments – whether costs certificate should be granted pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981

WORDS AND PHRASES – “likely to be derived” – “was derived” – “as soon as practicable”

Bankruptcy Act 1966 (Cth) ss 139M, 139P, 139Q, 139S, 139W, 139Y, 139ZG and 149D(1)(f)
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)

Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 cited
Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295 cited
Minister for Human Services & Health v Haddad (1996) 39 ALD 557 cited
Comcare Australia v Hill [1999] FCA 488 cited

PETER LESLIE CHALLEN v GRAHAM ROSS BENDEICH

QG 179 OF 1998

SPENDER, BURCHETT & HELY JJ

25 JUNE 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 179 OF 1998

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	PETER LESLIE CHALLEN Applicant
AND:	GRAHAM ROSS BENDEICH Respondent
JUDGES:	SPENDER, BURCHETT & HELY JJ
DATE OF ORDER:	25 JUNE 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal is allowed:

•     The decision of AAT given on 7 December 1998 is set aside;

•The compulsory contributions assessments purportedly made by the respondent against the applicant on 9 August 1996 are quashed;

•     The respondent is to pay the applicant’s costs of the appeal.

2.Pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 the respondent be granted a costs certificate in respect of the appeal to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:

•The costs incurred by the respondent in relation to the appeal; and

•Any costs incurred by the applicant in respect of the appeal that are required to be paid by the respondent to the applicant in pursuance of Order 1.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 179 OF 1998

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	PETER LESLIE CHALLEN Applicant
AND:	GRAHAM ROSS BENDEICH Respondent

JUDGES:	SPENDER, BURCHETT & HELY JJ
DATE:	25 JUNE 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. The applicant became bankrupt on his own petition on 12 August 1993. Robert Thomas Adcock (“Adcock”) became his trustee on that date. The applicant had signed an authority pursuant to s 188 of the Bankruptcy Act 1966 (“the Act”) on 21 July 1993, hence his bankruptcy is deemed to have commenced on that date: s 115(2), s 40(1)(i).

2. On 29 October 1995 Adcock was replaced by the respondent…