Cunningham v Green

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUNNINGHAM v GREEN [2011] FMCA 515

BANKRUPTCY – Application by respondent trustee in bankruptcy for distribution of dividends – failure by bankrupt to file statement of affairs – obligations imposed upon trustees pursuant to s.146 of the Bankruptcy Act 1966 (Cth).

Bankruptcy Act 1966 (Cth), ss.51(1), 140(1), 146

Official Trustee in Bankruptcy v Thor [2006] FMCA 1637
Re Shaw; Ex parte Official Trustee in Bankruptcy [1999] FCA 968
Re Sturt; Ex parte Official Trustee in Bankruptcy [2001] FCA 1649

Applicant: JOHN WILLIAM CUNNINGHAM

Respondent: TONI JOY GREEN

File Number: BRG 471 of 2011

Judgment of: Burnett FM

Hearing date: 22 June 2011

Date of Last Submission: 22 June 2011

Delivered at: Brisbane

Delivered on: 22 June 2011

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Ferguson Cannon Lawyers

There was no appearance by the Respondent

ORDERS

1. That pursuant to s.146 of the Bankruptcy Act 1966 (Cth) a distribution of dividends be made available to those creditors of the bankrupt estate of the Respondent who prove their debts in accordance with Part VI Division 5 of the Bankruptcy Act 1966 (Cth), as if the bankrupt had filed a statement of affairs in accordance with the prescribed form and those creditors had been stated to be creditors in it.

2. That the costs of the Applicant be taxed from the bankrupt estate of the Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 471 of 2011

JOHN WILLIAM CUNNINGHAM

Applicant

And

TONI JOY GREEN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This application by the respondent, Toni Joy Green’s trustee in bankruptcy, John William Cunningham, seeks orders pursuant to s.146 of the Bankruptcy Act 1966 (Cth) (the Act) for the distribution of dividends to be made to creditors of the bankrupt estate of the bankrupt in favour of those whose debts have been proved in accordance with Part VI Division 5 of the Act. Section 146 provides that 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 among 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.

2. In this instance the bankrupt was sequestrated by order of the court made on 11 February 2009. The applicant trustee was also appointed on that date. Following appointment, the trustee made numerous requests and attempts for the bankrupt to complete and file a statement of affairs. Notwithstanding those efforts, no statement of affairs has been filed. In addition, the Insolvency and Trustee Service Australia also attempted to locate the bankrupt to prosecute her for failing to make out her statement and file her statement of affairs pursuant to s.51(1) of the Act. It seems nothing has come of those efforts.