Fitzgerald and Inspector-General in Bankruptcy
[2024] AATA 2731
•31 July 2024
Fitzgerald and Inspector-General in Bankruptcy [2024] AATA 2731 (31 July 2024)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/3547
Re:Kevin Fitzgerald
APPLICANT
AndInspector-General in Bankruptcy
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:31 July 2024
Place:Brisbane
The Respondent's decision dated 30 April 2021 is affirmed.
.................................[SGD].......................................
Member Lee Benjamin
Catchwords
BANKRUPTCY – where Trustee objected to discharge of bankruptcy – where objection made out pursuant to subsection 149D(1)(f) of Bankruptcy Act 1966 (Cth) – Applicant does not have reasonable excuse for failure to meet statutory obligations – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Bankruptcy Act 1966 (Cth)
Cases
Mallett and Inspector-General in Bankruptcy [2018] AATA 3739
REASONS FOR DECISION
Member Lee Benjamin
31 July 2024
WHAT IS THIS DECISION ABOUT?
Mr Kevin Fitzgerald was declared bankrupt in 2018. In the ordinary course, he would have been discharged from his bankruptcy three years later. However, his trustee, Mr John Melluish (Trustee), objected to his discharge because Mr Fitzgerald failed to pay the Trustee an amount under an income contribution assessment (ICA). Mr Fitzgerald sought an Inspector-General in Bankruptcy (Respondent) review of the Trustee’s objection. The Respondent confirmed the objection. Mr Fitzgerald now seeks a Tribunal review of the Respondent’s decision. Mr Fitzgerald concedes that he did not object to the ICA or meet his obligations under the same. He contends that his liability under the ICA was not correct because he was unemployed, not receiving income and otherwise unable to pay anything to the Trustee. Despite Mr Fitzgerald’s contentions, the Tribunal has no jurisdiction to review the ICA’s correctness in this application. The key issue for the Tribunal is whether Mr Fitzgerald had a reasonable excuse for failing to pay an amount under the ICA. In my view, the answer to this question is, no.
WHAT HAPPENED?
On 17 April 2018, a Sequestration Order was made against the Applicant’s estate in the Federal Circuit Court of Australia on the petition of Deloitte Services Pty Ltd.[1]
[1] Exhibit R1, p 4, para 14.
On 18 April 2018, the Trustee sent Mr Fitzgerald a letter advising as to his obligations under the Bankruptcy Act 1966 (Cth) (the Act). [2]
[2] Exhibit R1, p 5, para 17.
On 12 July 2018, the Trustee issued a letter to Mr Fitzgerald directing him to provide the Trustee with details of his estimated income for the contribution assessment period 17 April 2018 to 16 April 2019 (CAP1). Mr Fitzgerald failed to provide the Trustee with the requested information.[3]
[3] Exhibit R1, p 5, para 17.
On 5 September 2018, the Trustee conducted an assessment of Mr Fitzgerald’s income for CAP1 and issued an income contribution assessment for CAP1 in the sum of $12,451.60. On the same day, the Trustee issued correspondence to Mr Fitzgerald, which enclosed a Notice of Income Contribution Assessment for CAP1. Mr Fitzgerald was advised that he could make a lump sum payment of his income contribution liability or make payment by way of eight monthly instalments of $1,556.45 per month.[4]
[4] Exhibit R1, p 5, para 18.
On 24 August 2020, the Trustee issued a written demand for payment of $12,451.60 under the Notice of Income Contribution Assessment for CAP1 within 14 days of the date of the demand, and failing which Mr Fitzgerald was advised that the Trustee would object to his discharge from bankruptcy.[5]
[5] Exhibit R1, p 5, para 19.
On 5 January 2021, the Respondent issued to Mr Fitzgerald a Notice of Objection to Discharge from Bankruptcy. Subsection 149D(1) of the Act specifies the grounds of objection that may be set out in a notice of objection. In the notice, the Respondent indicated that the Trustee relied on, among other grounds,[6] the Trustee’s objection under subsection 149D(1)(f) of the Act:[7]
The [Applicant] bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG.[8]
[6] The Trustee subsequently withdrew its other objection grounds under s 149D(1)(d) and s 149D(1)(e) of the Act.
[7] Exhibit R1, p 1, para 2; p 5, paras 15-16.
[8] Section 139ZG of the Act governs the payment of an income contribution under an ICA.
On 5 March 2021, Mr Fitzgerald sent to the Respondent a request to review the trustees’ Notice of Objection dated 5 January 2021 (Application for Review). In relation to the ground of objection under subsection 149D(1)(f) (the subject provision of this review), Mr Fitzgerald stated:
Mr Melluish and I have had a few short meeting [sic] in his office and other phone calls and he was fully aware that I was unemployed and in the years 2017, 2018, 2019 received no income and that when I was employed I would make any necessary contribution. Financial hardship prohibited me from making any payment to him and that I had no money. The truth is I have not had any real income for over the last four years and have been supported financially by my wife.
…
The point I am trying to make is that I had told Mr Melluish I would contact him when I was employed and pay the necessary contribution framework.[9]
[9] Exhibit R1, p 5, para 20.
On 31 March 2021, the Respondent sent an email to Mr Fitzgerald in relation to his Application for Review. In relation to the ground of review under subsection 149D(1)(f) of the Act (the subject provision of this review), the Respondent relevantly stated that on the available information, the ground of objection would not be cancelled if a review was conducted because of the following:
(a)on 5 September 2018, the Trustee issued Mr Fitzgerald a notice of assessment for income contributions for CAP1 in the amount of $12,451.60 (income assessment);
(b)the income assessment required Mr Fitzgerald to make payment of the assessed liability by lump sum or by eight monthly instalments in the amount of $1,556.45 commencing on 20 September 2018;
(c)Mr Fitzgerald had not provided any evidence that he had made any payments to the Trustee for his assessed income contribution liability;
(d)the Trustee had provided Mr Fitzgerald with written warnings that if he failed to pay his income contribution liability an objection to his discharge from bankruptcy could or would be lodged;
(e)the Respondent did not consider that Mr Fitzgerald had established that he had a reasonable excuse for his failure to pay to the Trustee the assessed income contribution liability; and
(f)if Mr Fitzgerald disputed the Trustee’s income assessment he had the right to request a review of the assessment by the Respondent not later than 60 days after the day on which he was notified of the assessment (which he had not undertaken).[10]
[10] Exhibit R1, p 6, para 21.
In the foregoing 31 March 2021 correspondence, the Respondent invited Mr Fitzgerald to make any further submissions by 9 April 2021. Mr Fitzgerald did not make further submissions to the Respondent.[11]
[11] Exhibit R1, p 6, para 21.
On 30 April 2021, the Respondent made a decision (Respondent’s decision). In the same, the Respondent indicated that it had reviewed the Trustees’ objection with reference to subsections 149C(1), 149C(1A), 149N(1) and 149N(1A) of the Act. The Respondent noted that for an objection under subsection 149D(1)(f) of the Act to be confirmed, the following elements had to be satisfied, namely that:
(a)Mr Fitzgerald was liable to pay an amount under section 139ZG of the Act (an assessed income contribution liability); and
(b)Mr Fitzgerald had failed to pay the Trustee that amount by the due date.[12]
[12] Exhibit R1, p 7, para 22.
The Respondent’s decision states that it made the following factual/evidential findings:
(a)a valid contribution assessment had been issued by the Trustee to which the Applicant was liable to pay an amount under section 139ZG of the Act;
(b)no payment of any amount towards the contribution assessment had been made by the Trustee’s requisite due date; and
(c)there was sufficient evidence to support the ground of objection. [13]
[13] Exhibit R1, p 7, para 23.
The Respondent’s decision indicates that, having satisfied itself that there was sufficient evidence to support the ground of objection under subsection 149D(1)(f) of the Act, the Respondent then considered whether Mr Fitzgerald had a reasonable excuse for the conduct or failure that constituted the special ground under subsection 149D(1)(f) of the Act (i.e., a reasonable excuse for not making a payment under the ICA). In reaching its position, the Respondent says they considered the matters offered by Mr Fitzgerald as a “reasonable excuse”, namely:
(a)Mr Fitzgerald was unemployed in the years the subject of the period of the contribution assessment;
(b)Mr Fitzgerald had received no income to make payment to the Trustee; and
(c)Mr Fitzgerald had been supported financially entirely by his wife. [14]
[14] Exhibit R1, p 7, para 24.
The Respondent’s decision states that it made the following findings on Mr Fitzgerald’s “reasonable excuse” grounds:
·Mr Fitzgerald did not seek review of the merits of the Trustee’s assessment to the Respondent within the requisite 60 day period under the Act;
·Mr Fitzgerald did not provide evidence of his income and expected income during the subject period of the contribution assessment in accordance with his obligations under section 139U of the Act; and
·accordingly, on the basis of the matters immediately above, the Respondent was not satisfied that Mr Fitzgerald had established a reasonable excuse for not making payment of the liability under the contribution assessment, which founded the ground of objection.
Ultimately, the Respondent’s decision confirmed the Trustee’s objection to Mr Fitzgerald’s discharge from bankruptcy on the ground specified in subsection 149D(1)(f).[15]
[15] Exhibit R1, p 9, para 25-26.
On 27 May 2021, Mr Fitzgerald made an application to the Tribunal[16] for review of the Respondent’s decision dated 30 April 2021 to confirm the Trustee’s objection to his discharge from bankruptcy under the ground specified in subsection 149D(1)(f) of the Act dated 5 January 2021.[17] Mr Fitzgerald states that the reasons for this application are as follows:
Technically, I did not disclose particulars of income in the prescribed method. However, the Trustee was informed both verbally and via email that I had not had any regular, if any income, since 2015.
The amount used for the [income contribution] assessment was erroneous. I was not, could not be an architect. I was as a bankrupt not able to practice as one. [18]
[16] Exhibit Tr1, p 2.
[17] Mr Fitzgerald applied to the Tribunal under subsection 149Q(a) of the Act and subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
[18] Exhibit Tr1, p 3.
WHAT DOES THE LAW SAY?
A trustee may object to a bankrupt’s discharge from bankruptcy.
Section 149A of the Act provides that if a Trustee so objects, then the bankrupt’s discharge date is extended from three years, depending on the objection grounds, to five years or eight years. [19]
[19] Exhibit R1, p 2, para 4.
Section 149B of the Act provides that at any time before a bankrupt is discharged, the trustee may file a written objection to the discharge, and that such a notice must be filed if the trustee believes that doing so will cause the bankrupt to do something which he or she is required to do by law, and there is no other way the trustee is able to induce the bankrupt to do so.[20]
[20] Exhibit R1, p 2, para 4.
Section 149C of the Act provides that the notice need not state the Trustee’s reasons for objecting to the bankrupt’s discharge where subsection 149D(1)(f) applies. The reasons may be apparent from the nature of the special ground - for example the bankrupt failed to pay an amount under an ICA that the bankrupt was liable to pay pursuant to section 139ZG of the Act. Nevertheless, a trustee still needs to have valid reasons for an objection under a special ground even if the reasons need not be stated.[21]
[21] Exhibit R1, p 3, para 9.
Subsection 149D(1) of the Act specifies the grounds of objection that may be set out in a notice of objection. The relevant ground in the present case is contained in subsection 149D(1)(f): the bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG.[22]
[22] Exhibit R1, p 2, para 6.
Section 149N of the Act provides for the Respondent’s powers in reaching a decision on a review. In particular, subsection 149(1A) requires that the Respondent must not cancel an objection to a bankrupt’s discharge in circumstances where:
·the objection specifies at least one special ground (e.g., section 149D(1)(f)); and
·there is sufficient evidence to support the existence of at least one special ground specified in the objection; and
·the bankrupt fails to establish that the bankrupt had a reasonable excuse for the conduct or failure that constituted the special ground.
The Respondent contends (correctly, in my view) that the Tribunal’s job in reviewing the Respondent’s decision about a bankruptcy discharge objection, is to focus its enquiry through “the lens of section 149N”.[23] For this purpose, the Respondent drew my attention to Deputy President Hanger QC’s decision in Mallett and Inspector-General in Bankruptcy:[24]
… [t]hat, even if one of the other reasons for cancelling the objection as provided in s 149N(1) exist, the objection cannot be cancelled if there is sufficient evidence to support the existence of that special ground: paragraph 149N(1A)(b). This effectively imposes the minimum threshold before an objection on a special ground can be cancelled of being satisfied that there is insufficient evidence to support the existence of that special ground.[25]
[23] Exhibit R1, p 3, para 10.
[24] [2018] AATA 3739.
[25] at [16].
In undertaking a review under subsection 149Q(a) of the Act and subsection 25(1) of the AAT Act, the Tribunal stands in the shoes of the Respondent and is bound by section 149N of the Act.[26]
[26] Exhibit R1, p 4, para 10.
Section 43 of the AAT Act sets out the Tribunal’s powers under review and provides that the Tribunal may affirm the decision under review, vary the decision under review, or set aside the decision under review and either make a new decision in replacement or remit the matter for reconsideration.[27]
[27] Exhibit R1, p 4, para 11.
Section 139ZG governs the payment of an income contribution, the subject of an objection under subsection 149D(1)(f) of the Act, which is payable at such time as the trustee determines or, if the trustee permits the contribution to be paid by instalments, at such times and in such amounts as the trustee determines. [28]
[28] Exhibit R1, p 4, para 12.
Under section 139ZI of the Act, if a trustee makes a determination under section 139ZG, the trustee must give to the person a written notice setting out the particulars of the determination which may be contained in a notice of assessment. Under subsection 139ZI(3) the time by which a payment is to be made in respect of a determination must not be earlier than 14 days after a notice of the determination is given to the person.[29]
[29] Exhibit R1, p 4, para 13.
WHAT QUESTIONS NEED TO BE ANSWERED?
In this application, the Tribunal must consider the four questions:
(a)Did the Trustee issue a valid ICA to Mr Fitzgerald under which he was liable to pay an amount to the Trustee pursuant to section 139ZG?
(b)Did Mr Fitzgerald make a payment to the Trustee after the Trustee had given notice under section 139ZI?
(c)Is there sufficient evidence to support the ground of objection (under subsection 149D(1)(f))?
(d)Did Mr Fitzgerald have a reasonable excuse for the conduct or failure that constituted the special ground under subsection 149D(1)(f) of the Act?
WHAT ARE THE ANSWERS TO THE QUESTIONS?
In my view (and I find that):
(a)The Trustee issued a valid ICA to Mr Fitzgerald under which he was liable to pay an amount to the Trustee under section 139ZG;
(b)Mr Fitzgerald did not make a payment to the Trustee after the Trustee had given notice under section 139ZI;
(c)there was sufficient evidence to support the ground of objection (under subsection 149D(1)(f)); and
(d)Mr Fitzgerald did not have a reasonable excuse for the conduct or failure that constituted the special ground under subsection 149D(1)(f) of the Act.
It follows from the foregoing answers that Mr Fitzgerald’s application does not succeed. The Respondent’s decision of 30 April 2021, confirming the Trustee’s objection to Mr Fitzgerald’s discharge from bankruptcy must be affirmed.
WHY ARE THESE THE ANSWERS TO THE QUESTIONS?
Before explaining the basis for the Tribunal answers to the questions before it, I will deal with Mr Fitzgerald’s contention about the Trustee’s income assessment under the ICA.
Mr Fitzgerald’s principal submission concerns whether the amount payable under the ICA was correct. To this end, Mr Fitzgerald says:
My argument is and will be that the Trustee knew I was unemployed and not earning an income and the “Cap 1” was an estimate. That my bankruptcy can be voided over a payment of $12,451.60 from money I have not earnt and do not have seems to be patently unjust and unfair. I have suggested that I could borrow the smaller amount of $5000.00 for this to all away. Even that seems absurd. A bankrupt going into further debt to pay the T[r]ustee![30]
[30] Exhibit A1, p 1.
At the Tribunal hearing, Mr Fitzgerald expanded on his submission in the following terms:
MR FITZGERALD: So [the Trustee] knew… that I was not - still wasn’t working and was receiving no income.
And I guess my closing remark ... is, if this is to, in a sense, stand, so I'm going to be then… it’s almost like a debtor’s prison. So in 2026, when it comes up again and I haven’t paid, to go through the same process again. I mean, I’ll just end up owing $12,241.60 until I die. It just seems to me absurd.
I don't understand how I can pay money from not receiving any money because, yes, I should've asked for a - an assessment of - the income assessment to be reassessed, which I didn’t, but that’s - the point I make is, of course, is that Mr Melluish, as the trustee, knew that I was not earning income in that period.[31]
[31] Transcript, p 24, lines 10-23.
In reply, the Respondent says that whether an ICA (and the amount payable) is correct or should be varied, falls for consideration under Division 4B (subdivision G of the Act - sections 139ZA to 139ZF). The Respondent further says that it is not a matter for consideration or determination in the review of an objection under subsection 149D(1)(f) which is concerned with whether the requirements of sections 139ZG and 139ZI were met in founding the objection under subsection 149D(1)(f).[32]
[32] Exhibit R1, p 9, para 29.
While I can appreciate Mr Fitzgerald’s concerns and practical focus on the “merits” of the ICA, which he has not paid[33] (the subject of the ground of objection under subsection 149D(1)(f)), it is not a matter for consideration by this Tribunal.[34]
[33] Transcript, p 10, line 47.
[34] Exhibit R1, p 9, para 30.
Mr Fitzgerald had the right under subsection 139ZA(3) of the Act to seek a review of the Trustee’s ICA within 60 days of the same being issued. Mr Fitzgerald’s evidence was that he was aware of his review rights but chose not to exercise them:
MR GIACCO: And page 1 - back to page 33 of his letter [the ICA]?
MR FITZGERALD: Yes.
MR GIACCO: And the trustee advised you, didn’t he, in that letter that under section 139ZA of the Bankruptcy Act, you could request the Inspector-General to review that assessment [under the ICA]?
MR FITZGERALD: Yes.
MR GIACCO: And you had - and a request must be made in writing, and lodged a bit before (indistinct) office?
MR FITZGERALD: Yes.
MR GIACCO: And accompanied by a notice of this trustee’s assessment?
MR FITZGERALD: Yes.
MR GIACCO: And the address in which to send your request if you sought to review the trustee’s income assessment?
MR FITZGERALD: Yes.
MR GIACCO: And did you seek review of that assessment?
MR FITZGERALD: No.[35]
[35] Transcript, p 11, lines 36-46; p 12, lines 1-4.
Mr Fitzgerald offered a rather delphic explanation for his decision not to exercise his right to object to the ICA:
MEMBER: … you acknowledge, Mr Fitzgerald, that you didn’t make any objection to the assessment[?]
…
MEMBER: What was the reason for not doing so?
MR FITZGERALD: … I admit that I should've, in a more timely manner, maybe gone through another process, but I didn’t.
And as to why, look, we had 26 offices; we had 50 companies; it was a huge concern. We got screwed by the - whatever it was - the global recession; blah, blah, blah, blah, blah. I was hardly in a - in a fit state, really, to administer this whole process. And, yes, you know, going bankrupt and losing business is a gruelling psychological and mental issue, and maybe that’s the - maybe that’s the reason, I don't know...[36]
[36] Transcript, p 24, lines 30-47; p 25, lines 1.
Even if Mr Fitzgerald had been within time to seek review of the income assessment under the ICA,[37] and a valid applicant was before this Tribunal, his obligation/liability to pay the income assessment would not have been affected by such an application.[38] In short, this Tribunal has no business reviewing the income assessment under the Trustee’s ICA.
The Trustee issued a valid ICA to Mr Fitzgerald under which he was liable to pay an amount to the Trustee under s 139ZG
[37] Subsection 139ZA(3).
[38] Exhibit R1, p 10, para 34.
On the materials before me, I accept the Respondent’s submission that the Trustee had the power to issue an ICA, and that a valid ICA was issued in this case:
MR GIACCO: As the trustee recorded in his assessment, the assessment was one where he deemed the income and he had regard to the provisions of 139Z of the Act and under which the trustee could consider the income and the employment under which [Mr Fitzgerald] was engaged in prior to the period of assessment. And having regard to those circumstances and objective data as to what income an applicant in similar circumstances could derive, the assessment was then issued [to Mr Fitzgerald]…
Having issued the assessment, it was open for the applicant to have sought review of that income assessment if he took issue with it. He didn’t do so, and, under the provisions of the Act, there is a valid assessment…
And in our submission, unless review has been sought of the assessment itself, this tribunal ought to accept, and, indeed, we would say must accept, the validity of that assessment having regard to its nature and the manner in which it was determined and issued to [Mr Fitzgerald].[39]
[39] Transcript, p 22, lines 41-47; p 23, lines 8-11.
The Trustee made Mr Fitzgerald aware of his obligations under the Act in relation to providing information and data to the Trustee when sought. Mr Fitzgerald failed to provide the information and data requested by the Trustee.[40] There is also no doubt that Mr Fitzgerald was statutorily obligated to pay an amount to the Trustee under the ICA.[41] Mr Fitzgerald does not appear to dispute these propositions.
Mr Fitzgerald did not make a payment to the Trustee after the Trustee had given notice under section 139ZI
[40] Transcript, p 11, lines 1-34.
[41] Exhibit Tr1, p 33.
There is no dispute between the parties,[42] and indeed Mr Fitzgerald readily concedes,[43] that Mr Fitzgerald did not make a payment under the ICA to the Trustee after the section 139ZI notice was duly issued.
[42] Transcript, p 22, lines 27-28.
[43] Transcript, p 10, lines 18-47.
There was sufficient evidence to support the ground of objection (under subsection 149D(1)(f))
Subsection 149D(1) of the Act specifies the grounds of objection that may be set out in a notice of objection. As already mentioned, the relevant ground in the present application is subsection 149D(1)(f) - the bankrupt failed to pay to the Trustee an amount that the bankrupt was liable to pay under section 139ZG. On the materials before me, and in particular, the Respondent’s letters to Mr Fitzgerald dated 31 March 2021 and 30 April 2021 (see paragraphs 9 and 11/12 above, respectively), there is sufficient evidence to support the ground of objection.[44] I note that Mr Fitzgerald did not offer relevant evidence or responsive submissions to satisfactorily address this point.
Mr Fitzgerald did not have a reasonable excuse for the conduct or failure that constituted the special ground under subsection 149D(1)(f) of the Act
[44] Exhibit Tr1, p 56-58.
Mr Fitzgerald contends that he had a reasonable excuse for not meeting his obligations under the ICA because he was not receiving any income, was unemployed[45] and financially supported by his wife[46] during the relevant period. He says that he was unable to obtain employment despite efforts to do so[47] (but there was no evidence before the Tribunal of the same).[48] Notwithstanding that Mr Fitzgerald concedes that he had the right to, but chose not to, seek a review of the merits of the Trustee’s ICA, he maintains his contention that he had a reasonable excuse:
MR FITZGERALD: It just doesn’t make any sense to me on any grounds: legal, moral or whatever. But I did not, have not, received a steady income or any marginal income [since 2016] …
And nowhere near $111,000 for that particular year or, in fact, for any year. So that’s my position, basically. I just don’t understand how this income assessment stands, I guess, legally. Surely, it’s based on fact, not fiction.
…
[I]f I understand what Mr Giacco is saying that … because I didn’t, in a sense, have a review on a timely manner of the income assessment, this income assessment should stand even though I can prove, I suppose, you know, in my view, I can prove that I didn’t receive anywhere near that income of $110,000, what I don’t - so there’s that - so that issue alone appals [sic] me in a sense that, somehow, I can be liable for income that the trustee knew I didn’t receive or was in receipt of, I just don’t understand how that stand (indistinct) stand, so to speak.[49]
[45] Transcript, p 24, lines 38-40.
[46] Transcript, p 15, lines 42-43.
[47] Transcript, p 9, lines 6-8.
[48] Transcript, p 9, lines 14-17.
[49] Transcript, p 6, lines 25-27, 31-33; p 21, lines 26-34.
I do not accept Mr Fitzgerald’s submissions.
Despite Mr Fitzgerald’s submissions that the Trustee knew of his financial situation, Mr Fitzgerald also accepts that he failed to provide the information and data requested by the Trustee.[50] Mr Fitzgerald’s conduct is confirmed by the Trustee’s letter to Mr Fitzgerald dated 5 September 2018.[51] In this regard, I find that Mr Fitzgerald did not provide evidence of his income and expected income during the relevant period of the ICA in accordance with his obligations under section 139U of the Act.
[50] Transcript, p 11, lines 1-34.
[51] Exhibit Tr1, p 33.
I have earlier addressed that Mr Fitzgerald was aware of his right to seek a merits review of the income assessed under the ICA, and failed to exercise his right within the requisite 60 day period.[52] By not so exercising his rights, Mr Fitzgerald acquiesced to the income assessed under the ICA. Mr Fitzgerald cannot use his present application before the Tribunal for a merits review of income assessed under the ICA.
[52] Subsection 139ZA(3) of the Act.
In these circumstances, I find that Mr Fitzgerald did not have a reasonable excuse for the non-payment of his liability under the ICA - the failure that constituted the special ground under subsection 149D(1)(f) of the Act.
SUMMARY
Overall, I find that there was a valid ICA, which had been issued by the Trustee, to which Mr Fitzgerald was liable to pay, and no payment had been made towards the same. At the same time, there was sufficient evidence to support the ground of objection. Mr Fitzgerald did not have a reasonable excuse for failing to pay the amount under the ICA.
Having regard to the “lens of section 149N”, the Trustee’s objection cannot be cancelled because there is sufficient evidence to support the existence of a special ground (subsection 149D(1)(f)) and no reasonable excuse exists. The Respondent’s decision confirming the objection must be affirmed.
DECISION
The Respondent’s decision dated 30 April 2021 is affirmed. [53]
[53] This means that Mr Fitzgerald’s bankruptcy period will continue until 22 May 2026.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
...............[SGD]....................
Associate
Dated: 31 July 2024
Date of Hearing: 5 March 2024
Applicant: Self-represented
Representative for Respondent: Joe Giacco, McInnes Wilson Lawyers
ANNEXURE 1
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED R1. Respondent Statement of Facts, Issues and Contentions R 6 October 2023 R2. Respondent List of Authorities R - 29 February 2024 Tr1. Section 37 T-Documents - - 29 July 2023 A1. Applicant Statement of Facts, Issues and Contentions A - 14 September 2023
0
1
0