Harrison v Tsamasis - [2008] FCA 1313

FEDERAL COURT OF AUSTRALIA
Harrison v Tsamasis [2008] FCA 1313
BANKRUPTCY – failure of bankrupt to provide statement of affairs – trustee in bankruptcy had made repeated unsuccessful attempts to contact bankrupt – bankrupt’s total lack of interest in her own bankruptcy – application pursuant to s 146 of Bankruptcy Act 1966 (Cth) for order that distribution of dividends amongst creditors proceed as if the bankrupt had filed a statement of affairs – application granted
Bankruptcy Act1966 (Cth) s 146
Harrison v Del Santo [2007] FMCA 470 ref to
Official Trustee in Bankruptcy v Raeffaele,in the matter of Tindaro Raeffaele [2003] FCA 328 followed
Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968 ref to
Official Trustee in Bankruptcy v Thor [2006] FMCA 1637 ref to
Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862 followed
BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF ELIZABETH TSAMASIS v ELIZABETH TSAMASIS
NSD 906 OF 2008
JACOBSON J
14 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 906 OF 2008

BETWEEN:

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF ELIZABETH TSAMASIS
Applicant

AND:

ELIZABETH TSAMASIS
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

14 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The distribution of dividends from the estate of the Respondent, to any creditors who have proved their debts, proceed in accordance with Part VI, Division 5 of the Bankruptcy Act 1966 (Cth), as if the Respondent had filed a statement of her affairs and the creditors had been stated to be creditors therein.
2.The Applicant Trustee’s costs of and incidental to this application be paid from the bankrupt estate of the Respondent.
3.The parties be granted liberty to apply on 24 hours notice.
4.The Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors until she has lodged her duly completed Statement of Affairs in the required form in the office of the Official Receiver for the State of New South Wales and the Applicant has dealt with the claims of any further creditors disclosed in the Statement of Affairs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 906 OF 2008

BETWEEN:

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF ELIZABETH TSAMASIS
Applicant

AND:

ELIZABETH TSAMASIS
Respondent

JUDGE:

JACOBSON J

DATE:

14 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application under s 146 of the Bankruptcy Act1966 (Cth) for an order that distribution of dividends amongst creditors who approve their debts shall proceed in accordance with Div 5 of Pt VI of the Act as if the bankrupt had filed a statement of affairs and the creditors had been stated to be creditors in the statement of affairs.
The purpose of the section was explained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harrison v Tsamasis

Details

AGLC: Harrison v Tsamasis [2008] FCA 1313
Case: [2008] FCA 1313
Decision Date: 14 August 2008

CaseChat Overview and Summary

The parties in the case were Harrison, as the trustee of the estate of Tsamasis, and Tsamasis, the respondent, a declared bankrupt. The dispute arose from the distribution of dividends from the bankrupt's estate to creditors, and the question of whether the bankrupt had fulfilled her statutory obligation to file a statement of her affairs. This case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court involved the interpretation and application of the Bankruptcy Act 1966 (Cth). Specifically, the court had to determine whether the bankrupt had complied with the requirements to file a statement of her affairs, and if not, what the consequences of this non-compliance were. The court also needed to decide on the distribution of dividends to creditors and the allocation of costs between the parties.

The court found that the bankrupt had not filed a statement of her affairs as required by the Act. As a result, the court ordered that dividends be distributed to creditors as if the bankrupt had filed such a statement. This meant that creditors were to be treated as if they had been stated in the statement of affairs. Additionally, the court ruled that the trustee's costs were to be paid from the bankrupt's estate. The bankrupt was prohibited from receiving any surplus funds until she had lodged a completed statement of affairs with the Official Receiver for New South Wales and the trustee had dealt with any new creditor claims that arose from the statement.

The final orders included the distribution of dividends according to the specified statutory provisions, payment of the trustee's costs from the estate, and the granting of liberty to apply for further orders. The bankrupt was also barred from receiving any surplus funds until she had fulfilled her obligation to file a statement of her affairs and the trustee had addressed any new creditor claims.

Orders

Orders of the court

1. The distribution of dividends from the estate of the Respondent, to any creditors who have proved their debts, proceed in accordance with Part VI, Division 5 of the Bankruptcy Act 1966 (Cth), as if the Respondent had filed a statement of her affairs and the creditors had been stated to be creditors therein.

2. The Applicant Trustee’s costs of and incidental to this application be paid from the bankrupt estate of the Respondent.

3. The parties be granted liberty to apply on 24 hours notice.

4. The Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors until she has lodged her duly completed Statement of Affairs in the required form in the office of the Official Receiver for the State of New South Wales and the Applicant has dealt with the claims of any further creditors disclosed in the Statement of Affairs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 906 OF 2008

BETWEEN:	BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF ELIZABETH TSAMASIS Applicant
AND:	ELIZABETH TSAMASIS Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	14 AUGUST 2008
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 906 OF 2008

JUDGE:	JACOBSON J
DATE:	14 AUGUST 2008
PLACE:	SYDNEY