Dubow v Official Receiver - [2013] FMCA 217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUBOW v OFFICIAL RECEIVER & ANOR

[2013] FMCA 217

BANKRUPTCY – Annulment – debtor’s petition – application by debtor for annulment – whether petition ought to have been presented – whether petition ought to have been accepted.

Bankruptcy Act 1966, ss.55(3A), 55(3AA), 55(3AB), 55(4), 153B, 153B(1), 156A(1), 156A(3)(a), 156A(4), 160, 181A

Drake v Jones [2009] FMCA 298
McBain v Palffy [2009] FCA 260
Re: Estate of Smith [1999] FCA 1755
Re Abbas ; Ex parte Official Trustee in Bankruptcy (1995) 57 FCR 140
Re Almassy (1999) 92 FCR 597
Seeger v Seeger [2000] FCA 732
Symes v Holbrook [2003] FCA 96

Applicant:

YOLANDE VICTORIA FRANCES DUBOW

First Respondent:

OFFICIAL RECEIVER

Second Respondent:

ANDREW BARNDEN

File Number:

BRG 519 of 2012

Judgment of:

Jarrett FM

Hearing date:

25 June 2012

Date of Last Submission:

25 June 2012

Delivered at:

Brisbane

Delivered on:

28 March 2013

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent:

Mr Henry

Solicitors for the First Respondent:

Australian Government Solicitor

Solicitor for the Second Respondent:

Mr Eardley

Solicitors for the Second Respondent:

Diamond Conway

Counsel for the creditors Fitness First Australia Pty Ltd and Kent Attorneys

Mr Hogg

Solicitors for the creditors Fitness First Australia Pty Ltd and Kent Attorneys

Kent Attorneys

ORDERS

The application filed on 8 June, 2012 as amended, is dismissed
The application in a case filed on 30 August, 2012 is adjourned for hearing to 26 April, 2013.
The applicant shall pay:
(a)The Official Receiver’s;
(b)The second respondent Andrew Barnden’s;
(c)The creditor Fitness First Australia Pty Ltd’s; and
(d)The creditor Kent Attorneys’
costs of and incidental to the application to be assessed in accordance with the Federal Magistrates Courts Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 519 of 2012

YOLANDE VICTORIA FRANCES DUBOW

Applicant

And

OFFICIAL RECEIVER

Respondent

REASONS FOR JUDGMENT

By this application, amended by leave, Yolande Dubow, a bankrupt by her own petition, seeks to have her bankruptcy annulled pursuant to s.153B of the Bankruptcy Act1966 (Cth).
The application is opposed by Fitness First Australia Pty Ltd and Kent Attorneys each of which are creditors of Ms Dubow. Ms Dubow objected to the appearance by the creditors on this application, but for reasons that I gave on 25 June, 2012, I gave each creditor leave to appear.
Ms Dubow says that her bankruptcy should be annulled because:
a)her debtor’s petition should not have been presented to the Official Receiver; and
b)her debtor’s petition should not have been accepted by the Official Receiver when it was presented.
In the event that her application for annulment fails, Ms Dubow seeks the following alternative orders (reproduced from her Amended Application):
1. Pursuant to s.178 Bankruptcy Act 1966, the Bankrupt (and her son) be permitted to travel overseas for a period of 15 days as organised prior to the presentation of the Debtors petition from 5 July 2012 until 19 July 2012 on the basis of compassionate grounds.
1A. The Trustee be…

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.

Continue reading Dubow v Official Receiver

Details

AGLC: Dubow v Official Receiver [2013] FMCA 217
Case: [2013] FMCA 217
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Yolande Victoria Frances Dubow, a bankrupt by her own petition, sought to have her bankruptcy annulled under section 153B of the Bankruptcy Act 1966 (Cth). Dubow contended that her debtor's petition should not have been presented to, or accepted by, the Official Receiver. Dubow's application was opposed by creditors, Fitness First Australia Pty Ltd and Kent Attorneys, who were allowed to appear despite Dubow's objections. Dubow sought several alternative orders, including permission to travel overseas and the provision of legal advice obtained by the trustee. The court was required to decide whether Dubow's bankruptcy should be annulled and, if not, whether any of the alternative orders should be granted.

The court first considered whether Dubow's petition should not have been presented. Dubow argued that she was solvent at the time of presenting her petition and therefore ineligible to be declared bankrupt. However, the court found that Dubow's statement of affairs was poorly completed and did not conclusively establish her solvency. The court was not satisfied on the balance of probabilities that Dubow was solvent at the time she presented her petition. Furthermore, the court found that Dubow had not discharged the burden to demonstrate that she was solvent or that her assets were readily realisable.

Next, the court examined whether Dubow's petition should not have been accepted by the Official Receiver. Dubow argued that the Official Receiver had failed to properly consider the petition against the requirements of section 55 of the Act. However, the court found that there was no obligation upon the Official Receiver to scrutinise the petition in the manner suggested by Dubow. Moreover, the evidence did not establish that the Official Receiver had failed to consider the petition against section 55(3A) of the Act. The court also rejected Dubow's contention that the Official Receiver had not supplied the required information, as the petition presented on 15 March 2012 had her acknowledgment and the reverse of the debtor's petition had certain "Prescribed Information" printed upon it.

In conclusion, the court found that Dubow's bankruptcy should not be annulled. The court held that Dubow had actively sought to have her petition accepted, knowing she was not insolvent, which constituted an abuse of process. The court also found that Dubow was presently insolvent and unable to meet the costs orders against her. Therefore, the application for annulment was dismissed with costs.

ORDERS
The application filed on 8 June 2012 as amended, is dismissed.
The application in a case filed on 30 August 2012 is adjourned for hearing to 26 April 2013.
The applicant shall pay the costs of and incidental to the application to be assessed in accordance with the Federal Magistrates Courts Rules 2001.

Orders