Hamilton v Inspector-General in Bankruptcy

[2009] FCA 592

FEDERAL COURT OF AUSTRALIA

Hamilton v Inspector-General in Bankruptcy [2009] FCA 592

Bankruptcy Act 1966 (Cth) ss 33(1)(c), 155D

BARRY KENNETH HAMILTON v INSPECTOR-GENERAL IN BANKRUPTCY

TAD 16 of 2009

MARSHALL J
2 JUNE 2009
MELBOURNE (VIA VIDEOLINK TO HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 16 of 2009

BETWEEN: BARRY KENNETH HAMILTON
Applicant

AND: INSPECTOR-GENERAL IN BANKRUPTCY
Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	2 JUNE 2009
WHERE MADE:	MELBOURNE (VIA VIDEOLINK TO HOBART)

THE COURT ORDERS THAT:

1.Pursuant to s 33(1)(c) of the Bankruptcy Act 1966 (Cth) (“the Act”) the time provided by s 155D(1)(a) of the Act for the applicant to apply to the respondent to extend his registration as a trustee in bankruptcy is extended to 5 June 2009.

2.Upon the respondent extending the applicant’s registration as a trustee such registration will be renewed with effect from and including 29 March 2008.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 16 of 2009

BETWEEN: BARRY KENNETH HAMILTON
Applicant

AND: INSPECTOR-GENERAL IN BANKRUPTCY
Respondent

JUDGE:	MARSHALL J
DATE:	2 JUNE 2009
PLACE:	MELBOURNE (VIA VIDEOLINK TO HOBART)

REASONS FOR JUDGMENT

1. The applicant, Mr Barry Hamilton, applies for an extension of time to enable him to apply to extend his registration as a trustee under the Bankruptcy Act 1966 (Cth) (“the Act”). The respondent supports the application. The Official Trustee in Bankruptcy is aware of the application and does not oppose it.

2. Mr Hamilton is a chartered accountant and practices as an insolvency practitioner from his office in Hobart. On 29 March 2005, Mr Hamilton became registered as a trustee under the Act. That registration expired on 29 March 2008. It did not come to Mr Hamilton’s attention until last week that his registration had expired.

3. Mr Hamilton did not apply to extend his registration because he failed to record the expiry date and had forgotten that his registration expired on 29 March 2008. He had retained his registration certificate in his office but did not display it in a prominent place.

4. Since 29 March 2008, Mr Hamilton has been the subject of two standard annual reviews by the Insolvency and Trustee Service Australia (“ITSA”). During those annual reviews ITSA did not inform Mr Hamilton that his registration as a trustee had expired. ITSA would ordinarily have sent a reminder letter to Mr Hamilton but did not do so due to an administrative oversight.

5. I see no reason to refuse Mr Hamilton’s application. It is just and appropriate to grant his application for an extension of time within which to apply, albeit retrospectively, to extend his registration as a trustee; see s 33(1)(c) of the Act. The extension of time will apply for three years from 29 March 2008 in accordance with the intent of s 155D of the Act. Mr Hamilton is not indebted to ITSA or the Inspector-General in Bankruptcy in respect of realisation (estate) charges, interest or other costs.

6. If the extension were not granted, all work performed on bankrupt estates by Mr Hamilton since 29 March 2008 may not have any legal foundation. A refusal of any extension may require him to refund fees, adversely affecting his practice and lead to the termination of the employment of some of his staff. This result can and will be avoided by the Court granting the relief sought. The failure to apply for an extension was an oversight. No practical injustice arises to any other person by the making of the order sought by Mr Hamilton.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        2 June 2009

Counsel for the Applicant:	Mr C Groves
Solicitor for the Applicant:	Dobson Mitchell & Allport
Counsel for the Respondent:	Mr S Linden
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	2 June 2009
Date of Judgment:	2 June 2009