Daevys v Official Trustee in Bankruptcy - [2011] FCA 398

FEDERAL COURT OF AUSTRALIA
Daevys v Official Trustee in Bankruptcy; In the Matter of Daevys
[2011] FCA 398

Citation: Daevys v Official Trustee in Bankruptcy; In the Matter of Daevys [2011] FCA 398

Parties: STUART DAEVYS v OFFICIAL TRUSTEE IN BANKRUPTCY

File number: NSD 134 of 2011

Judge: FLICK J

Date of judgment: 20 April 2011

Catchwords:
BANKRUPTCY – proofs of debt admitted – review – re-hearing – onus on applicant – extension of time in which to seek review – application dismissed

PRACTICE AND PROCEDURE – effect of discharge – admission of proofs of debt – review of – re-hearing

Legislation: Bankruptcy Act 1966 (Cth) ss 33, 55, 82, 84, 102, 104 and 153

Cases cited: BDT Holdings Pty Ltd v Piscopo [2009] FCA 151, cited
Brindle, Re; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506, considered
Daevys v Official Trustee in Bankruptcy [2011] FCA 397, cited
D K Rogers, Re; Ex parte CMV Parts Distributors Pty Ltd (1989) 20 FCR 561, referred to
Cook, Re; Estate (1958) 18 ABC 162, considered
Gosden v Dixon (1992) 107 ALR 329, considered
Masters, Re; Ex parte Gerovich (Unreported, Federal Court of Australia, Toohey J, 30 July 1985), considered
Payne; Ex parte Levi (Unreported, Federal Court of Australia, Toohey J, 23 September 1986), referred to
Pegler v Dale [1975] 1 NSWLR 265, cited
P T Garuda Indonesia Pty Limited v Grellman (1994) 48 FCR 252, cited
Rocom International Pty Ltd v Prentice [2002] FCA 604, cited
Wong, Re; Ex parte Wong v Donnelly (1995) 63 FCR 426, cited

Date of hearing: 7 March, 18 March and 7 April 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: S Nash

Solicitor for the Respondent: Sally Nash & Co

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 134 of 2011

IN THE MATTER OF STUART DAEVYS

BETWEEN:
STUART DAEVYS
Applicant

AND:
OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

20 APRIL 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 104(3) of the Bankruptcy Act1966 (Cth) the time within which an application may be made is extended such that the 21 day period there prescribed is to commence on 20 January 2011.
2.The Application as filed on 10 February 2011 is dismissed.
3.The Respondent Trustee’s costs be costs in the administration of the estate.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 134 of 2011

IN THE MATTER OF STUART DAEVYS

BETWEEN:
STUART DAEVYS
Applicant

AND:
OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent

JUDGE:

FLICK J

DATE:

20 APRIL 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 2 March 2004 Mr Stuart…

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.

Keep reading for free

Create a free CaseChat account to read Daevys v Official Trustee in Bankruptcy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FCA 398
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the matter of Daevys v Official Trustee in Bankruptcy, the primary issue before the court was the admissibility of proofs of debt in a bankruptcy proceeding and the possibility of extending the time for seeking review. The applicant, Daevys, sought to challenge the trustee's decision to reject certain proofs of debt, arguing that they should have been admitted. The Official Trustee in Bankruptcy opposed the application on the basis that it was filed outside the statutory time limit and that the applicant had not demonstrated any exceptional circumstances justifying an extension of time.

The legal issues before the court included whether the time limit for seeking a review under section 104 of the Bankruptcy Act 1966 (Cth) could be extended and, if so, under what circumstances. The court needed to determine whether the 21-day period prescribed by section 104(3) could be extended beyond the standard period, and if so, whether the applicant had provided sufficient grounds for such an extension. Additionally, the court considered the nature of the review process under section 104, which allows for a re-hearing rather than merely a review of the trustee's decision.

The court found that the statutory time limit for seeking review under section 104(3) could be extended, but only if it was just in all the circumstances. The court outlined several factors to consider when determining whether to extend the time, such as the length of the delay, the reasons for the delay, and whether the delay was intentional or due to a bona fide mistake. The court held that the applicant had not provided sufficient grounds to justify an extension of time, as the delay was largely due to the applicant's own inaction and the application was not filed within a reasonable time after the applicant became aware of the trustee's decision. Consequently, the application was dismissed, and the respondent's costs were ordered to be paid from the estate's administration costs.

Orders

Orders of the court

1. Pursuant to s 104(3) of the Bankruptcy Act 1966 (Cth) the time within which an application may be made is extended such that the 21 day period there prescribed is to commence on 20 January 2011.

2. The Application as filed on 10 February 2011 is dismissed.

3. The Respondent Trustee’s costs be costs in the administration of the estate.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 104 is one such provision. That section provides for a “review” of a decision of the trustee “in respect of a proof of debt”. The section, in its entirety, provides as follows: Appeal against decision of trustee in respect of proof (1)A creditor, or the bankrupt, may apply to the Court for review of a decision of the trustee under subsection 102(1), (3) or (4) in respect of a proof of debt. (2)The Court may, upon the application, confirm, reverse or vary the decision of the trustee. (3)Subject to the power of the Court to extend the time, an application under this section to review a decision shall not be heard by the Court unless it was made within 21 days from the date on which the decision was made.Section 104(3), it will be noted, requires an application for review to be filed within 21 days – although that time can be extended by an order of the Court. See: Re Wong; Ex parte Wong v Donnelly (1995) 63 FCR 426 at 429 per Sackville J. Time begins to run from the date when the decision was “made” and not from when notice of the decision is “conveyed or served”: Rocom International Pty Ltd v Prentice [2002] FCA 604 at [6] per Tamberlin J. The discretion to extend time was there described as “broad and flexible” and one to be exercised where it was “just in all the circumstances”, supra at [4]. Considerations relevant to the exercise of the discretion were identified as including the following:·whether the time limits are of a substantive or procedural nature;·whether the case is arguable;·the respective prejudice to the parties;·the length of delay;·responsibility and reasons for the delay;·whether the delay was intentional or the result of a bona fide mistake; and ·whether the delay was caused by the litigant or legal advisers.Section 33(1)(c) also confers a discretion “to extend … any time limited by this Act …”. The nature of the “review” undertaken for the purposes of s 104 is a “review” not confined to the correctness or otherwise of the trustee’s decision. It is a “re-hearing”: P T Garuda Indonesia Pty Limited v Grellman (1994) 48 FCR 252 at 255 per Lockhart J. Thus, in Re D K Rogers; Ex parte CMV Parts Distributors Pty Ltd (1989) 20 FCR 561 at 562 to 563 von Doussa J cited with approval the following observations of Toohey J in Payne; Ex parte Levi (Unreported, Federal Court of Australia, Toohey J, 23 September 1986):[10] … Section 104 of the present Bankruptcy Act empowers the Court to “review” a trustee’s decision and, in my view, that term carries with it the notion that the parties may place before the Court such material as they wish, provided of course that it is relevant and otherwise admissible. … The function of the Court is not to consider the correctness or otherwise of the trustee’s decision in the light of the material before him but to determine, in the light of the material before it, whether the applicant has a debt that should be admitted to proof. Of course, inconsistencies in the material provided to the trustee and that offered to the Court may properly be taken into account.See also: BDT Holdings Pty Ltd v Piscopo [2009] FCA 151 at [4] per Rares J.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Daevys v Official Trustee in Bankruptcy; In the Matter of Daevys [2011] FCA 398
Parties:		STUART DAEVYS v OFFICIAL TRUSTEE IN BANKRUPTCY
File number:		NSD 134 of 2011
Judge:		FLICK J
Date of judgment:		20 April 2011
Catchwords:		BANKRUPTCY – proofs of debt admitted – review – re-hearing – onus on applicant – extension of time in which to seek review – application dismissed PRACTICE AND PROCEDURE – effect of discharge – admission of proofs of debt – review of – re-hearing
Legislation:		Bankruptcy Act 1966 (Cth) ss 33, 55, 82, 84, 102, 104 and 153
Cases cited:		BDT Holdings Pty Ltd v Piscopo [2009] FCA 151, cited Brindle, Re; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506, considered Daevys v Official Trustee in Bankruptcy [2011] FCA 397, cited D K Rogers, Re; Ex parte CMV Parts Distributors Pty Ltd (1989) 20 FCR 561, referred to Cook, Re; Estate (1958) 18 ABC 162, considered Gosden v Dixon (1992) 107 ALR 329, considered Masters, Re; Ex parte Gerovich (Unreported, Federal Court of Australia, Toohey J, 30 July 1985), considered Payne; Ex parte Levi (Unreported, Federal Court of Australia, Toohey J, 23 September 1986), referred to Pegler v Dale [1975] 1 NSWLR 265, cited P T Garuda Indonesia Pty Limited v Grellman (1994) 48 FCR 252, cited Rocom International Pty Ltd v Prentice [2002] FCA 604, cited Wong, Re; Ex parte Wong v Donnelly (1995) 63 FCR 426, cited
Date of hearing:	7 March, 18 March and 7 April 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	S Nash
Solicitor for the Respondent:	Sally Nash & Co

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 134 of 2011

BETWEEN:	STUART DAEVYS Applicant
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY Respondent

JUDGE:	FLICK J
DATE OF ORDER:	20 APRIL 2011
WHERE MADE:	SYDNEY

JUDGE:	FLICK J
DATE:	20 APRIL 2011
PLACE:	SYDNEY