Dubow v Official Receiver

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.