Higham v Official Trustee in Bankruptcy

[2001] FCA 678

FEDERAL COURT OF AUSTRALIA

Higham v Official Trustee in Bankruptcy [2001] FCA 678

BANKRUPTCY – relief sought against Official Trustee in Bankruptcy – where property vested in Official Trustee – where claim made for property to be returned to discharged bankrupt – where no prospect of success of claim – where claim made that fees and charges accumulated during bankruptcy be declared void – where claim as framed could not succeed given s 283 of Bankruptcy Act.

Bankruptcy Act 1966 (Cth)

LORRAINE HIGHAM v THE OFFICIAL TRUSTEE IN BANKRUPTCY
NO. NG 7183 OF 2001

JUDGE:         BEAUMONT J

DATE:           20 APRIL 2001
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7183 OF 2001

BETWEEN:	LORRAINE HIGHAM APPLICANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	20 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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	NG 7183 OF 2001

BETWEEN:	LORRAINE HIGHAM APPLICANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT

JUDGE:	BEAUMONT J
DATE:	20 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is a general application filed by the litigant in person, as applicant, seeking several forms of relief against the Official Trustee in Bankruptcy.  The first claim made in the general application to the Court, filed on 10 April 2001, is expressed as follows: 

   “(1)That [certain land] [then described] known as 53 Creek Street, Riverstone NSW 2765 and the improvements on the land which half interest vests in the Official Trustee in Bankruptcy as trustee of the bankrupt estate of [the present applicant] be returned to the discharged bankrupt.”

2. It is clear that, as a matter of law, such a claim could never succeed.  It is plain from the evidence that this property, by operation of the law, that is to say, the provisions of the Bankruptcy Act 1966 (“the Act”), vested in the Official Trustee for the purposes of its administration in bankruptcy.   Although it appears that the property will soon be sold and its proceeds realised for the purposes of the administration of the bankrupt estate, there can be no prospect of success of the claim now made.

3. In those circumstances, I order that claim (1) made in the general application report dated 10 April 2001 be dismissed.

4. The second claim made in the general application to the Court, filed on 10 April 2001, is as follows:

   “(2)That all fees and charges accumulated throughout the course of the bankruptcy be declared void.”

5. In my opinion, this Court should not exercise any general jurisdiction as a matter of discretion in this instance. I am prepared to accept, for the moment, that the Court’s jurisdiction under s 30 of the Act is wide enough to pick up a claim of this kind. However, as a matter of discretion, it is inevitable that the claim as framed could not succeed in this Court and I propose to dismiss it summarily. My reason for this approach is that by s 283 of the Act, the Inspector-General is given a power to remit an amount of interest charge, realisations charge or late payment penalty and by regulation 16.10 of the Bankruptcy Regulations, the Inspector-General may waive or remit the whole or part of any fee.

6. In fact, the Inspector-General was called upon to exercise those powers by the present applicant but declined to do so.  The applicant has subsequently exercised her right to seek a review of those decisions by the Administrative Appeals Tribunal (“the Tribunal”).  The present status of those proceedings is that the matter has been heard and the decision reserved.  However, there is pending currently an application by the Inspector-General to re-open that matter for the purpose of tendering some recent evidence.

7. Whatever the actual history of the matter in the Tribunal, the critical discretionary consideration, from the point of view of the exercise of this Court’s jurisdiction, is that the present applicant has ample, indeed, perhaps wider avenue open to her through her statutory access to the merits review of the Tribunal.  In those circumstances I am of the view that claim (2) must inevitably fail in this Court on the jurisdictional ground I have mentioned.  I say nothing, of course, about the merits of the particular claim.  I therefore order that claim (2) be dismissed.

   ORDERS

8. I order that the application be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             24 July 2001

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sally Nash & Co
Date of Hearing:	10 April 2001
Date of Judgment:	20 April 2001