Chronis v DS Queen Street Mall Pty Ltd
[2004] FMCA 1107
•20 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHRONIS v DS QUEEN STREET MALL PTY LTD & ANOR | [2004] FMCA 1107 |
| BANKRUPTCY – Statement of Affairs – date of lodgement – deem – alteration of filing date for statement of affairs – discharged from bankruptcy – Bankruptcy Act 1966 (Cth) s 33A. |
Bankruptcy Act 1966
| Applicant: | CHRIS CHRONIS |
| Respondent: | DS QUEEN STREET MALL PTY LTD |
| Second Respondent: | THE OFFICIAL TRUSTEE IN BANKRUPTCY |
| File No: | MLG 1601 of 2004 |
| Delivered on: | 20 December 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 20 December 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M.J. Galvin |
| Solicitors for the Applicant: | Robert James Lawyers |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | The Insolvency and Trustee Service Australia |
ORDER
That pursuant to section 33A of the Bankruptcy Act 1966 the Statement of Affairs lodged on 10 September 2002 is deemed to have been lodged on 14 September 2001.
IT IS HEREBY DECLARED THAT:
The applicant is discharged from bankruptcy on the 20th day of January 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1601 of 2004
| CHRIS CHRONIS |
Applicant
and
| DS QUEEN STREET MALL PTY LTD |
Respondent
and
| THE OFFICIAL TRUSTEE IN BANKRUPTCY |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an ex tempore judgment arising from the applicant seeking the following orders:
a)an order pursuant to section 33A Bankruptcy Act 1966 (Cth) that a Statement of Affairs lodged on 10 September 2002 is deemed to have been lodged on 14 September 2001; and
b)such further or other orders as the Court deems meet.
The application was filed on the 8th day of December 2004. I am satisfied that the application was served upon the solicitors on record for the first‑named respondent and upon the second‑named respondent Mr Paul Pattison the trustee in bankruptcy. Present in Court this day was Mr Terence Clark, senior manager with Paul Pattison whom gave evidence in the proceedings. The proceedings were unopposed.
The application was supported by an affidavit of Mr Chronis filed 8 December 2004 and sworn 5 November 2004. That affidavit was accompanied by the exhibits referred to therein.
The history of the matter
On 18 May 2001 the respondent became a bankrupt under a sequestration order made in this Court. On 10 August 2001 he signed and delivered by registered post a Statement of Affairs to his trustee, who was then Mr Paul Sweeney of Hall Chadwick in Brisbane Queensland. Mr Sweeney forwarded that Statement of Affairs to the Insolvency and Trustee Service Australia (ITSA) under cover of a letter dated 22 August 2001. On 28 August 2001 the applicant received a telephone call from a Mr Daryl Hickey of Mr Sweeney's office. Mr Hickey advised that ITSA had refused to accept the Statement of Affairs for filing due to there being no addresses for the creditors listed in that Statement of Affairs. On 14 September 2001 the applicant provided to Mr Hickey a written list of the addresses for his creditors. That list was provided to Mr Hickey by registered mail.
In early 2002 Mr Sweeney was replaced as trustee by Mr Paul Pattison of Pattison Business Advisers and Insolvency Specialists in Melbourne Victoria. On 2 August 2002 the applicant received a letter from Mr Pattison advising that he was required to complete and file his Statement of Affairs. Subsequently the applicant attended upon Mr Pattison's office on several occasions and completed a new Statement of Affairs which was lodged with ITSA on 10 September 2002 and signed by the applicant on 27 August 2002.
The Law
Section 33A of the Bankruptcy Act 1966 provides:
33A
(1) This section applies to a statement of affairs that was filed for the purposes of section 54, 55, 56B, 56F or 57 by a bankrupt, or by a person who later became a bankrupt.
(2) If the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed.
(3) The Court cannot make an order that would result in the person being discharged from bankruptcy earlier than 30 days after the order is made.
(4) In this section:
filed includes presented, lodged or given.
This section came into force on 5 May 2003.
Consideration
Counsel for the applicant relied upon the affidavit of Mr Chronis.
He called Mr Terence Clark to give evidence in the proceedings. Mr Clark gave evidence that the trustee has no objection to the application that is made by the applicant this day. No other respondent appeared at the proceedings.
I am satisfied that on 14 September 2001 the applicant believed that he had completed his obligations with respect to the lodgment of a completed Statement of Affairs. I accept that he received no further communications from Mr Sweeney's office or ITSA concerning any then deficiencies in the Statement of Affairs and I also accept that he was not advised by Mr Sweeney or ITSA that the Statement of Affairs had not actually been lodged with ITSA.
The Court is satisfied that the applicant was “shocked” to discover that his Statement of Affairs had not been completed and filed in September 2001 as advised to him on 2 August 2002 in correspondence from Mr Pattison. The Court accepts that the applicant thought he had complied with his obligations with respect to the completion and lodgment of a Statement of Affairs in September 2001 and that had he known the Statement of Affairs had not been lodged, he would have taken steps at that time to ensure its lodgement.
I am satisfied that the applicant believed on reasonable grounds that he had filed his Statement of Affairs with ITSA at around 14 September 2001 when he forwarded to his trustee the addresses for the creditors listed in his Statement of Affairs. Accordingly, the Court shall make the orders sought pursuant to section 33A and declare that the applicant is discharged from bankruptcy on the 20th day of January 2005, being a date not earlier than 30 days after the making of the order pursuant to section 33A(2) of the Act.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 20 December 2004
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