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

1. The application filed on 8 June, 2012 as amended, is dismissed

2. The application in a case filed on 30 August, 2012 is adjourned for hearing to 26 April, 2013.

3. 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

1. 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).

2. 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.

3. 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.

4. 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 prohibited from refusing Consent to Travel overseas on the basis that the Bankrupt holds a British Passport and is a British citizen. Alternatively is estopped on the basis of an agreement proposed by the Trustee on 5 June 2012 which terms have been met by the Bankrupt.

   2. Pursuant to s.178 Bankruptcy Act 1966 a copy of any and all legal advice obtained by the Trustee in Bankruptcy pursuant to the acceptance of the Debtors petition accepted on 20 March 2012 be provided to the Bankrupt for use in any and all further legal proceedings to reduce the claims upon the estate. No privilege excluding the Bankrupt can apply.

   3. Pursuant to s.178 of the Bankruptcy Act 1966, and s.156A(3)(a) the trustee in Bankruptcy be replaced by the Bankrupts nominated Trustee Mr Hugh Ramsay. As the consent to act being signed on 18 November 2011 as was the majority of the Statement of Financial circumstances and somehow misplaced by the Insolvency and Trustee Service Australia.

   4. Pursuant to s.179 of the Bankruptcy Act 1966, a direction be made to the Trustee in Bankruptcy to consider the benefits of sale of all real property given limited equity and alternative use of property to garner credit to the Bankrupt estate by way of personal insolvency agreement or Debt agreement amongst majority of creditors.

   5.  Pursuant to s.179(1 )(b) direct the Bankruptcy trustee to discuss and communicate prior to the incursion of any expenses, costs or dealings with the Bankrupt and her (prior) assets.

   6. Set Aside the Bankruptcy of the Bankrupt pursuant to s.153B, such debts not being provable as at the time of the declaration and being corrected by the Bankrupt upon advice.

5. Fitness First Australia Pty Ltd and Kent Attorneys also oppose orders 3 and 6 sought in the alternative by Ms Dubow, as does the second respondent.

Background

1. Ms Dubow has been involved in extensive litigation against Fitness First Australia and more recently, Kent Attorneys.

2. On 5 November, 2010 Fitness First Australia and Ms Dubow entered into a Deed of Settlement which was apparently intended to settle the disputes that then existed between them.  The particulars of the disputes are not important for present purposes.  Unfortunately, however, the Deed of Settlement did not have the intended effect of quelling the controversies between the parties and more litigation ensued between them arsing out of the Deed.

3. By late 2011, Fitness First Australia had amassed some costs orders in various courts against Ms Dubow, and there was an application either soon to be made, or pending in the Supreme Court of New South Wales concerning those costs orders, and further costs orders sought by Fitness First Australia against Ms Dubow.

4. Ms Dubow was concerned about her position and the position of her secured creditors.  In her affidavit filed on 8 June, 2012 she swears that she was taking advice from Mr Hugh Ramsay, a registered bankruptcy trustee, to assist her to deal with the demands of Fitness First Australia.  She had prepared a debtor’s petition and given it to Mr Ramsay.  She swears that “part of the reasoning process was to utilise section 60 provisions of the Bankruptcy Act to halt further legal proceedings against” her in avoidance of a costs award to her by Fitness First Australia.

5. On 18 October, 2011 Ms Dubow dispatched a debtor’s petition and accompanying documents to Insolvency and Trustee Service Australia.  The copy of the debtor’s petition in evidence shows that Ms Dubow acknowledged that she had received and read the prescribed information contained as part of the debtor’s petition.  On the reverse of the front page of the debtor’s petition appears a page of information under the heading “Prescribed Information”.  Accompanying the debtor’s petition was 139 pages of material, including a statement of affairs and consent to act as trustee from Hugh Ramsay, the registered trustee from whom Ms Dubow had been taking advice.

6. On 28 October, 2011 Ms Dubow sent an email to the Official Receiver seeking to withdraw her debtor’s petition.  Ms Dubow swears that she receiver an employment offer on 21 October, 2011 which she wished to take up, but would not be able to take up if she was bankrupt.  For that reason she wished to withdraw her debtor’s petition.  By a response sent the same day, the Official Receiver advised Ms Dubow that as her debtor’s petition had not been received, it could be withdrawn. 

7. The debtor’s petition and accompanying documents were subsequently received in the Official Receiver’s Adelaide office on 2 November, 2011.  ITSA immediately advised Ms Dubow that her debtor’s petition had been received, but it would be returned to her the same day.  However, on the same day – 2 November, 2011 – Ms Dubow requested that ITSA hold the documents as she “may wish to further it”.  By an email of the same date, ITSA advised Ms Dubow that it would hold the documents until 15 November, 2011 after which time they would be returned to her.

8. On 16 November, 2011 the debtor’s petition and all attachments were returned to Ms Dubow by ITSA.  In the covering letter, the Official Receiver said:

   If you wish to resubmit your application at a future date, please make any necessary changes and re-date and initial page 1 of your Debtor’s Petition form and page 20 of your Statement of Affairs form with the current date and to ITSA…

9. Ms Dubow sent her debtor’s petition to ITSA again on or about 14 February, 2012.  It was received by ITSA on 9 March, 2012.   The form of the debtor’s petition was the same document that had been submitted to ITSA by Ms Dubow in October, 2011.  She redated the debtor’s petition by inserting the new date of 14 February, 2012 and her initials appear on the form close by that new date.  The new date and her initials appear next to her original signature which, apart from other matters, serves to acknowledge that she had received and read the prescribed information “overleaf”.  The reverse of the form still carried the “Prescribed Information”.  The redated and initialled debtor’s petition was stamped “Received” and dated 9 March, 2012 by ITSA in Adelaide.  There was no consent to act from a trustee included with the debtor’s petition or the other documents received by ITSA on 9 March, 2012. 

10. On the day it was received, ITSA sent the debtor’s petition, the statement of affairs and the accompanying bundle of documents back to Ms Dubow because certain questions within the statement of affairs had not been answered by her (questions 23, 28, 38, 40 and 41 D).  A letter was sent with the bundle with advice about why the documents could not be accepted and how she could complete the form.

11. Ms Dubow claims that on 13 March, 2012, she completed the forms as requested and again re-dated the debtor’s petition using the date 13 March, 2012.  She dispatched the documents to ITSA.  There is a facsimile that is part of her evidence whereby she faxed a copy of the debtor’s petition to ITSA on 16 March, 2012 as evidence that she had re-dated the petition and dispatched it to ITSA on 13 March.  Relevantly, the facsimile provides:

    I refer to your telephone request today to forward a Copy of the Debtors Petition previously lodged on 18 October 2012 and then withdrawn, 14 February 2012 and again with the Statement of Financial Affairs dated 13 March 2012.

    I attach that document but it would be my understanding that 13 March would be within the 28 days of the 14 February 2012 date, as even in a leap year February has 29 days, and the weekends do not count. This has some import as Fitness first obtained a further judgment for Costs on 27 February 2012 and again with another potential creditor in Kent Attorney on 2 March 2012. (Not that either have been assessed or quantified as yet.  There is also the probability of further costs orders having been made today 16 March 2012 in the Supreme Court of New South Wales at Sydney, in my absence.)

    In any event I attach the requested forms and the covering letter sent on 13 March and dated that day

    (faithfully reproduced)

12. According to the annexure to Ms Dubow’s affidavit (annexure YVFD-4), the document attached to the facsimile was apparently four pages long and included the front page of the debtor’s petition.  The annexure:

    a)Is a photocopy of the debtors petition that appears to have been signed and dated by Ms Dubow on 18 October, 2011;

    b)The photocopy bears the stamp of ITSA Adelaide and appears to be a “received” stamp which bears the date 2 November, 2011;

    c)Has the original date of “18/10/2011” struck through in original red pen and the date of 14/2/2012 written in original red pen above the old date;

    d)Has another date “13/3/2012” written in original black pen together with hand drawn arrow from that date to the date in red of “14/2/2012” with the words “less than 28 days from 14/2/12 when signed previously” written in original black ink beside the arrow.

    e)Has a blank reverse.

13. On 15 March, 2012 the debtor’s petition, the statement of affairs and a bundle of 179 accompanying pages was received by ITSA in Adelaide.  However the front page of the petition is different to that sent by facsimile by Ms Dubow on 16 March, 2012 and which she said was a copy of the document sent on 13 March, 2012.  The petition received by ITSA:

    a)bears three received stamps from ITSA Adelaide – “2 Nov 2011”, “9 Mar 2012” and “15 Mar, 2012”;

    b)bears only two dates which purport to be the dates Ms Dubow signed the petition – “18/10/2011” and “14/2/2012”;

    c)the date “18/10/2011” is not struck through;

    d)The letters “Y.D” appear in hand writing next to the date  “18/10/2011”;

    e)The date “14/2/2012” is placed below the date “18/10/2011”;

    f)The reverse of the page has the “Prescribed Notices” printed on it.

14. Put shortly, the document received by ITSA on 15 March, 2012 is not the same as the document Ms Dubow sent by facsimile to ITSA on 16 March, 2012 and which she says was a copy of the document she sent on 13 March, 2012.

15. Moreover, in cross-examination, Ms Dubow accepted that the facsimile she sent to ITSA on 16 March, 2012 had as part of it the page headed “Prescribed Information” that appears as the reverse to the front page of the debtor’s petition.

16. The statement of affairs was dated 13 March, 2012 and was otherwise in an acceptable form.  I accept the evidence of Mr Robinson that there was no Trustee’s Consent to Act included in the bundle of documents received on 15 March, 2012.

17. On 20 March, 2012 the debtor’s petition was accepted by ITSA. The Official Trustee became the trustee of Ms Dubow’s estate in bankruptcy: s.160 of the Act.

18. On 26 April, 2012 Andrew James Barnden, Registered Trustee, was appointed trustee of Ms Dubow’s estate pursuant to s.181A of the Act.

The Law

1. Relevantly, s.153B of the Bankruptcy Act provides:

   Annulment by Court

   (1)  If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor‘s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.

   (2)  In the case of a debtor‘s petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.

2. Self-evidently, s.153B of the Act directs the Court’s attention to whether “…in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver”.  If the Court is satisfied that either of those matters exists, the Court’s discretion to make an order annulling the bankruptcy is enlivened.  The discretion to annul a bankruptcy is not “at large”: Re Almassy (1999) 92 FCR 597 at [14]. It is only if one or both of the matters just referred to is made out on the balance of probabilities that the court can consider exercising the discretion conferred by s.153B(1).

3. As to the first matter set out in s.153B(1), “... it is necessary for the applicant to establish some circumstances which meant that she was not eligible to present the petition to establish that it ought not to have been presented. It is only if that point is reached that the Court has a discretion to annul the bankruptcy.”: Re Almassy (above at [14]).

4. That a bankrupt was solvent when he or she presented the relevant petition seems to be treated by the authorities as a circumstance disentitling the bankrupt to present the petition: Seeger v Seeger [2000] FCA 732 at [8]; Re: Estate of Smith [1999] FCA 1755 at [15].

5. To establish the second limb of s.153B(1) of the Act, namely that a petition ought not to have been accepted, the applicant must establish that the conditions precedent to acceptance of a debtor’s petition under s.55 of the Act were not satisfied: Re Almassy at [11], Re Abbas ; Ex parte Official Trustee in Bankruptcy (1995) 57 FCR 140; Symes v Holbrook [2003] FCA 96 at [15]).

The petition ought not have been presented

1. Ms Dubow’s case is that she was solvent at the time she presented the petition and therefore it ought not to have been presented.  In her affidavit filed on 8 June, 2012 she says at paragraph 16:

   Accordingly on the figures provided, at the relevant time as no defaults or enforcement action was proceeding, I probably was not insolvent and even if I was, was not eligible to be declared Bankrupt.

2. In her written submissions, Ms Dubow states:

   i. There were no claims or defaults to be paid that were not paid or capable of being paid. (when they fell due).  At the date of filing the Petition the debtor was “solvent”, and or paying all debts as and when they fell due. There were no demands for payment that were not or could not be met.

   ii. Several of the debts were mistakenly recorded as that of the Applicant, ie Centrelink to Son; and Rodney Brenda was transit Moneys, held for Counsel on behalf of another, that were paid out prior to the making of the Bankruptcy order or acceptance of the Debtors Petition.

   ii. Fitness First Costs orders were not requested to be paid, were not made as in the case of Justice Garling (16 March 2012, transcript) or the Court of Appeal Costs Orders and (the Statutory Demand costs) were suspended due to S.377 the Legal Profession Act 2004 and referral for Review.  Alternatively, the Federal Court was considering the Deed of Release as invalid, if the consideration for the Deed was removed the Deed could not be valid and the Costs orders made pursuant to it were also invalid.

3. At the time she presented the petition on 15 March, 2012, Ms Dubow’s statement of affairs was completed in such a way that it was impossible to tell the extent of Ms Dubow’s liabilities.  The document was poorly completed and, at least in respect of the costs orders made in favour of Fitness First Australia the statement of affairs was incomplete. 

4. At the time of presentation of the petition, certain debts which Fitness First Australia has now proved for in the bankruptcy were based on costs orders that had not been quantified.  It is clear however that she included in her statement of affairs, prospective and contingent liabilities.  It was appropriate to do so:  McBain v Palffy [2009] FCA 260 at [16]. The level of those liabilities means that even Ms Dubow cannot be sure that she was solvent at the time she presented her petition. I am not satisfied on the balance of probabilities that she was solvent at that time.

5. Moreover, I am not satisfied that she is solvent now.  The onus of proving solvency is on Ms Dubow and it is not sufficient for Ms Dubow to establish that she has assets that exceed her liabilities if those assets are not presently available or realisable.  Ms Dubow does not demonstrate in the evidence that she is solvent, or that her main assets, being her real properties, are readily realisable.  In my view, Ms Dubow has not discharged the burden that she carries to demonstrate that she was solvent at the time she presented her debtors petition, or that she could realise assets quickly in order to become solvent.

6. Although Ms Dubow says that even if she was not solvent she was not otherwise eligible to be declared bankrupt, she does not identify why (apart from probable solvency) she was not “eligible” to be declared bankrupt.

The petition ought not have been accepted

1. Ms Dubow advances two arguments as to why her debtor’s petition ought not to have been accepted.

2. The first argument is articulated by Ms Dubow in the following way in her written submissions:

   i.   No outstanding debts (not being paid or paid as and when they fell due) and Debtors Petition and Statement of Financial Circumstances does not reflect otherwise. In fact the form doesn’t ask when due or what overdue amounts are involved:

   ii. The third petition (dated March) which was the one accepted (if considered such) was served by post, and not accompanied by any signed acknowledgement as per the rest of the petition. Contrary to Regulations 4.11 which is specific and in mandatory terms: (See Official Receiver’s Affidavit Paragraph 14 and 15, Annexures 4a and 4b)

   BANKRUPTCY REGULATIONS 1996 - REG 4.11

   Prescribed information to be supplied by Official Receiver to debtor

   (1) For the purposes of subsections 54D (1), 55 (3A), 56B (5) and 57 (3A) of the Act, the following information is prescribed:

   (a) information about alternatives to bankruptcy;

   (b) information about the consequences of bankruptcy;

   (c) information about sources of financial advice and guidance to persons facing or contemplating bankruptcy;

   (d) information about a debtor’s right to choose whether the bankruptcy is administered by a registered trustee or the Official Trustee;

   (e) a statement that it is an act of bankruptcy for a debtor to present to the Official Receiver, under section 54A of the Act, a declaration of intention to present a debtor’s petition.

   (2) The information must be factual and objective.

   (3) The Official Receiver must not accept …or a debtor’s petition under section 55, 56B or 57 of the Act unless the debtor has given to the Official Receiver a signed acknowledgement (which may be included in or appended to the petition) that the debtor has received and read the prescribed information.

   (4) If the debtor presents a petition without having given the Official Receiver must:

   (a) if the debtor presents the petition in person -- give the prescribed information to the debtor; or

   (b) if the debtor presents the petition by post -- post the prescribed information to the debtor.

   (emphasis added)

   iii. The Information previously acknowledged is not sufficient, the amounts were incorrect and out or date, ie $3000 not $5043.00 for credit provisions as an example - the rental property situation in Queensland and the effect on practising certificate as a solicitor in Queensland was too generalised to be of any use.

   iv. If the Official receiver had not “misread” the Fitness First amount of $37, 133 as $371,333.00 there would clearly have been a surplus in the Asset pool to service the Debt claimed. (which was excess to the amount due)

   v.  An enquiry would reveal all creditors except Fitness First were paid and up to date, as at the date of presenting the petition.

   SEE KYRIAKOU v Shield Mercantile [2004] FCA 1338 = Set aside

   Pattinson v Hadjimouratis [2006] FCFCA 153 and

   Re Abbas; Ex parte Official Trustee in Bankruptcy (1995) FCR 140

1. As to the first matter raised by Ms Dubow, there is no obligation upon the Official Receiver to scrutinise the debtor’s petition in the way in which Ms Dubow suggests.  The Official Receiver may do so, and may reject the petition if it appears from the information in the statement of affairs (and any additional information supplied by the debtor) that, if the debtor did not become a bankrupt, the debtor would be likely (either immediately or within a reasonable time) to be able to pay all the debts specified in the statement of affairs: s.55(3AA)(a) of the Act, but there is no obligation upon the Official Receiver to subject the petition to such scrutiny: s.55(3AB) of the Act. The second aspect of s.153B(1) of the Act with which I am now dealing is concerned with circumstances where the Official Receiver must reject the petition: Re Abbas; Ex parte Official Trustee in Bankruptcy (above) at 143; Drake v Jones [2009] FMCA 298 at [73] – [74], [81] )

2. Even if that view is wrong, I am not persuaded that the evidence establishes that the Official Receiver has failed to consider whether to reject the debtor’s petition under s.55(3AA). There is no evidence as to whether or not the Official Receiver did consider whether to reject the petitions under s.55(3AA). Having regard to s.55(3AB) and s.55(4), I am not prepared to infer that the Official Receiver has failed to consider the petition against s.55(3A) of the Act.

3. As to the second limb of Ms Dubow’s first argument as to why the petition ought not to have been accepted, the evidence does not establish the underlying factual contentions relied upon by her.  She argues that she was not supplied with the required information.  However, the petition that was presented on 15 March, 2012 had her acknowledgment on it and the reverse of the debtor’s petition had certain “Prescribed Information” printed upon it.

4. Although Ms Dubow seems to argue that the “Prescribed Information” printed on the reverse side of the debtor’s petition did not comply with reg.4.11 no particular deficiencies were identified.

5. Ms Dubow does not demonstrate, in my view, that either the debtor’s petition or the statement of affairs did not comply with any of the requirements of s.55 of the Act and that the Official Receiver was bound not to accept the petition.

Discretion

1. In the event that I am wrong about either of the limbs of s.153B of the Act as discussed above, I would decline to exercise the Court’s discretion to annul the bankruptcy in any event because:

   a)Her bankruptcy has come about upon her own application, which she made after taking advice from a registered bankruptcy trustee;

   b)She sought to avoid legal proceedings being pursued by one of her creditors by presenting her own petition;

   c)Despite seeking that she be made bankrupt upon her own petition she now says that her petition ought to have been rejected; and

   d)The evidence establishes that Ms Dubow is presently insolvent.  She is unable to meet the costs orders against her that are now due.

2. I have a concern that arises out of the way in which Ms Dubow has presented her case.  On the one hand she actively sought to have the Official Trustee accept her debtor’s petition.  She presented the petition to, as she says, try and bring the ongoing litigation with Fitness First Australia to an end.  Yet she says that at that time she knew she was solvent and the Official Receiver, if he had been doing his job correctly, ought to have picked up that fact from the morass of material that accompanied her petition.  Presenting a debtor’s petition when the debtor knows that he or she is not insolvent is an abuse of process.  Having on her own case engaged in an abuse of process, the Court should be slow, in my view, to provide its assistance to her.  In any event, the material demonstrates that she is in fact insolvent and the bankruptcy should not be annulled.

Alternative Orders

1. Ms Dubow argues that if the prescribed information from “a previous presented petition” is to be relied upon it is illogical that the Trustee Consent form from a previous petition would not be also relied upon by the Official receiver.  There are, however, two flaws in Ms Dubow’s argument:

   a)First, the prescribed information “from a previous petition” is not “relied upon”.  The evidence reveals that Ms Dubow presented a complete debtor’s petition on 15 March, 2012.  True enough the petition form was the same as that presented earlier in October, 2011, but that was withdrawn.  It was presented again on 14 February, 2012 and then again on 15 March, 2012.  On both occasions, it carried with it the relevant acknowledgement and prescribed information.

   b)Secondly, when the petition was presented again on 14 February and then 15 March, there was no consent to act from a trustee filed with the petition.  The consent that had been sent earlier in October, 2011 had been sent back to Ms Dubow together with all of her documents when she withdrew her first petition.

2. The consequence of there being no consent to act as trustee was that:

   a)the Official Receiver became the trustee of Ms Dubow’s estate on Bankruptcy (s.160 of the Act);

   b)The Official Receiver could nominate another trustee to act in his stead: s.181A of the Act.

3. In my view, it is not right to say that the consent to act as trustee forwarded by Ms Dubow to ITSA in October, 2011 remained effective and ought to have been acted upon by the Official Receiver. The October petition was withdrawn. The documents were returned to Ms Dubow. The automatic appointment of a trustee who has signed a consent to so act is only effective if it has been “filed” and not revoked at the time a debtor becomes bankrupt: ss.156A(3)(a), 156A(1).

4. Moreover, it is not to the point for Ms Dubow to point out that she resent the consent to act as trustee of Mr Ramsay to the Official Receiver on 12 April, 2012.  By that time she was bankrupt and the Official Receiver was already the trustee of her estate in bankruptcy.

5. Only creditors can apply for the removal of the trustee and the appointment of another trustee: s.156A(4) of the Act. Ms Dubow is not a creditor.

6. Further, No basis is demonstrated in the material to support any of the other alternative orders sought by Ms Dubow.

7. Her application must be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  2 April 2013