Harrison as Trustee of the Bankrupt Estate of Dowse

[2018] FCCA 1268

FEDERAL CIRCUIT COURT OF AUSTRALIA

Harrison as Trustee of the Bankrupt Estate of Dowse [2018] FCCA 1268

File number(s):	SYG 304 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	17 May 2018
Catchwords:	BANKRUPTCY – Application in a case for the payment of interest to creditors – where there are issues regarding the lodgement of a Statement of Affairs – surplus to be paid to the official receiver – advice and direction given by the Court under s.153A of the Bankruptcy Act 1966 (Cth).
Legislation:	Bankruptcy Act 1966 (Cth), ss.27, 146, 153A, 153A(1), 153A(6)
Number of paragraphs:	5
Date of hearing:	17 May 2018
Place:	Sydney
Counsel for the Applicant:	Mr B Skinner

ORDERS

SYG 304 of 2018
IN THE MATTER OF BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE OF THE BANKRUPT ESTATE OF MARK ALEXANDER VAUGHAN DOWSE
BETWEEN:	BRETT RICHARD GEOFFREY HARRISON Applicant
AND:	BANKRUPT ESTATE OF MARK ALEXANDER VAUGHAN DOWSE Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 MAY 2018

THE COURT ORDERS THAT:

1.The applicant pay interest to any creditors who are entitled to interest pursuant to s 153A(6) of the Bankruptcy Act 1966 (Cth) in the event that a dividend of 100 cents in the dollar has been paid to creditors.

2.The costs of and incidental to this application be paid out of the respondent’s bankrupt estate in accordance with the priority provided under the Bankruptcy Act 1966 (Cth).

3.Upon the trustee being satisfied under s 153A Bankruptcy Act 1966 (Cth) the bankruptcy is annulment, the trustee is to transfer the surplus to the Official Receiver to be held on trust for the bankrupt and or his heirs or successors.

4.The Court gives advice and direction to the trustee that it be reasonable and appropriate for the trustee to be satisfied within s 153A(1) Bankruptcy Act 1966 (Cth) upon payment of interest to the creditors that the bankruptcy be annulled notwithstanding that the respondent has not failed a Statement of Affairs.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application in a case within the Court’s jurisdiction under s 27 of the Bankruptcy Act1966 (Cth) (“the Act”), in which the trustee is seeking orders for the payment of interest to creditors who would be entitled pursuant to s 153A(6) of the Act.  The trustee also seeks orders in relation to what should happen to the surplus upon an annulment of the bankruptcy, and that the surplus be paid to the official receiver.

2. The bankrupt was made the subject of a sequestration order in circumstances where there had been a failure to pay strata levies. The property has been sold and creditors have been identified.  There is a surplus of almost $350,000.00.   

3. An order was earlier made by this Court on 6 April 2018 under s 146 of the Act, permitting the payment of debts as if the applicant had lodged a statement of affairs. It appears that the respondent bankrupt is unable to be located. Whilst it is not apparent to the Court one way or the other, it has been suggested that the applicant may have a mental illness in relation to the ability to complete the statement of affairs and or is living in a destitute, homeless state.

4. It is extremely important that the statutory obligation to complete the statement of affairs is attended to by any bankrupt. The Court will not likely dispense with the need to comply with the same. However, in the circumstances of the present case, I am satisfied that the orders of the kind sought in the application in the case are appropriate, and that the surplus should be paid to the official receiver, to be held on trust for the respondent following the annulment.

5. Under s 153A of the Act, by the trustee upon payment of the interest to the creditors, I give advice and direction to the trustee that it would be reasonable and within the trustee’s powers, following the payment of interest pursuant to the orders made by this Court to the creditors, and the meeting of the costs, charges and expenses to be satisfied, for the trustee to be satisfied within s 153A(1) of the Act, so that the bankruptcy is thereby annulled.

I certify that the preceding five (5) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 May 2018 and the parties were sent a sealed copy of the Court’s orders.

Dated:  21 February 2022