Jones and Inspector-General in Bankruptcy - [2018] AATA 3260

Jones and Inspector-General in Bankruptcy [2018] AATA 3260 (5 September 2018)
Division:TAXATION & COMMERCIAL DIVISION
File Number: 2017/0503
2017/0504

Re:Sharon Jones & Garrick Jones
APPLICANTS

AndInspector-General in Bankruptcy
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:5 September 2018
Place:Perth

The decision under review is set aside and in substitution for that decision there be a decision that the Objection be cancelled.
.....[sgd]...................................................................
Deputy President Boyle
CATCHWORDS
BANKRUPTCY – trustee’s objection to discharge – does the objection specify at least one special ground – elements of s 149D(1)(d) – request in writing by the trustee to provide written information – was the request for information a valid request – did the Applicants’ fail to comply with the request – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 43
Bankruptcy Act 1966 (Cth) – ss 181A, 149(4), 149A(1), (2) and (3), 149B, 149B(1), 149C(1) and (2), 149D(1), 149D(1)(d), 149K(1), (3) and (5), 149N, 149N(1), (1A) and (3), 149P(6), 149(Q), 265(1)(ca)
Bankruptcy Legislation Amendment Bill 2002 (Cth)
Bankruptcy Regulations 1996 (Cth)
CASES
Caruana and Inspector-General in Bankruptcy [2008] AATA 307
Commonwealth v Baume (1905) 2 CLR 405
Indigenous Business Australia v Kani [2012] NTSC 24
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Neffati and Inspector-General in Bankruptcy [2016] AATA 941
Playford and Inspector-General in Bankruptcy [2018] AATA 19
Rimanic and Inspector-General in Bankruptcy [2010] AATA 875
WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 1312
SECONDARY MATERIALS
Pearce DC and Geddes RS, Statutory Interpretation in Australia (7^th ed, LexisNexis Butterworths, 2011)
REASONS FOR DECISION
Deputy President Boyle
5 September 2018
THE APPLICATIONS

On 28 January 2017, the Applicants made applications to this Tribunal for review of a decision made by the Respondent on 13 January 2017 under s 149N of the Bankruptcy Act 1966 (Cth) (the Act).
On 13 September 2016 Mr George Lopez, the trustee of the Applicants’ bankrupt estates (the Trustee), filed a notice of objection to the discharge of the Applicants’ bankruptcies under s 149B of the Act (the Objection) on the ground:
section 149D(1)(d) of the Act – you failed, when requested in writing by the Trustee, to provide written information about your property, income or expected income, failed to comply with that request (T3, p12).
The Objection had the effect of extending the Applicants’ bankruptcies until 15 May 2022 unless the Objection is withdrawn or cancelled (s 149A(2) and (3) of the Act).
By request dated 10 November 2016 the Applicants requested the Respondent to review the decision of the Trustee to file the Objection. The request to review the Objection was received by the Respondent on 14 November 2016.
In a decision made pursuant to s 149N of the Act on 13 January 2017 (the Reviewable decision) the Respondent confirmed the Trustee’s decision to file the Objection under s 149B of the Act (T3).
BACKGROUND
On 14 May 2014 the Applicants became bankrupt upon acceptance of their debtors’ petitions (T10, pp 603-606). On the same date, the Official Trustee in Bankruptcy was appointed as trustee of the Applicants’ bankrupt estate.
On 3 September 2014, the Trustee and Evan Verge were appointed as joint and several trustees of the Applicants’ bankrupt estates pursuant to s 181A of the Act. On 9 June 2015, Mr Verge notified the Respondent that he would not renew his registration as a registered trustee. The Trustee thereafter became the sole appointed trustee of the bankrupt estates of the Applicants.
Between 19 September 2014 and 29 August 2016 the Trustee, or at least Melsom Robson, sent various requests to the Applicants for information about their property, including details about various art pieces and the location and addresses and contact details of the parties that then held those art pieces. It is a matter of contention whether these requests were valid requests for the purposes of s 149D(1)(d) of the Act and it is also a matter of contention whether the information sought was provided.
In his letter of 29 August 2016, the Trustee informed the Applicants that if they failed to provide the requested information by 30 August 2016, it would result in an objection to their discharge from bankruptcy (T10, p 488).
On 31 August 2016, the Applicants replied to the letter referred to in [9] above, in an email to the Trustee they attached a letter dated 30 August 2016 advising they did not know the exact physical location of any of the craft pieces and they needed an extension of time to get this information. In their letter the Applicants provided the name and email address of one representative and stated they were endeavouring to get all of the information requested (see T10, pp 489-91).
The Trustee stated he did not receive this email and letter and lodged the Objection on 13 September 2016 (T4, pp 31-33).
On 10 November 2016, the Applicants requested that the Respondent review the Trustee’s decision to file the Objection (T5, pp 39-56).
As noted at [5] above, the Respondent confirmed the Trustee’s decision (T3, pp 12-30).
THE HEARING
The applications were heard together by the Tribunal on 1 June 2018. The Applicants appeared in person and represented themselves. The Respondent was represented by Mr Tim Burrows from the Australian Government Solicitor.
The following documents were put into evidence at the hearing:
(a)the Applicants’ submissions dated 29 September 2017, comprising 24 pages (Exhibit A1);
(b)the Applicants’ further submissions titled “Submission 2” dated 23 March 2018, comprising 97 pages (Exhibit A2);
(c)the Applicants’ further submissions titled “Addendum to Applicants’ Submissions” dated 1 June 2018, comprising 32 pages (Exhibit A3);
(d)the Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 1 December 2017 (Exhibit R1);
(e)the Respondent’s submissions dated 30 May 2018, including the Explanatory Memorandum for the Bankruptcy Legislation Amendment Bill 2002 (Cth) (Exhibit R2); and
(f)the section 37 “T documents”, comprising 646 pages in two volumes (Exhibit R3.1 and R3.2).
LEGAL FRAMEWORK
The relevant provisions of the Act are as follows:
·section 149(4):
If the bankrupt becomes a bankrupt after the commencement of section 27 of the Bankruptcy Amendment Act 1991, the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs.
·section 149A(1):
If an objection to the discharge of a bankrupt has taken effect in accordance with section 149G, then, unless the objection is withdrawn or cancelled, the reference in whichever of subsections 149(2), (3) and (4) applies in relation to the bankrupt to the period of 3 years from the date on which the bankrupt filed his or her statement of affairs is taken to be a reference to the prescribed number of years from the prescribed date.
·section 149A(2):
For the purposes of subsection (1):
(a)the prescribed number of years is:
(i)if the objection was made on a ground, or on grounds that included a ground, referred to in paragraph 149D(1)(ab), (ac), (ad), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma) – 8 years; or
(ii)in any other case – 5 years;…
·section 149B(1):
Subject to the following provisions of this Subdivision, at any time before a bankrupt is discharged from bankruptcy under section 149, the trustee may file with the Official Receiver a written notice of objection to the discharge.
·sections 149C(1), (1A) and (2):
(1) A notice of objection must:
(a)set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and
(b)refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds; and
(c)state the reasons of the trustee for objecting to the discharge on that ground or those grounds.
(1A) Paragraph (1)(c) does not apply to a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).
(2) A notice of objection is not invalid merely because it does not state the ground or grounds of objection precisely as set out in subsection 149D(1) provided that the ground or grounds can reasonably be identified from the terms of the notice.
·section 149D(1):
The grounds of objection that may be set out in a notice of objection are as follows:
(d)the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request;…
·sections 149K(1), (3) and (5):
(1) The Inspector-General may review a decision of the trustee to file a notice of objection:
(a)on the Inspector-General's own initiative; or
(b)if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review.
(2)…
(3) A request by the bankrupt to the Inspector-General for the review of such a decision must:
(a)be in writing and given to the Inspector-General not later than 60 days after the day on which the bankrupt is notified of the trustee's objection; and
(b)be accompanied by:
(i)a copy of the notice of objection; and
(ii)any documents on which the bankrupt relies in support of the request.
(5) Within 60 days after the request is received, the Inspector-General must:
(a)decide whether to review the decision; and
(b)if the Inspector-General decides to review the decision – make his or her decision on the review.
·sections 149N(1), (1A) and (3):
(1) On a review of a decision, if the Inspector-General is satisfied that:
(a)the ground or grounds on which the objection was made was not a ground or were not grounds specified in subsection 149D(1); or
(b)there is insufficient evidence to support the existence of the ground or grounds of objection; or
(c)the reasons given for objecting on that ground or those grounds do not justify the making of the objection; or
(d)…;
the Inspector-General must cancel the objection.
(1A) An objection must not be cancelled under subsection (1) if:
(a)the objection specifies at least one special ground; and
(b)there is sufficient evidence to support the existence of at least one special ground specified in the objection; and
(c)the bankrupt fails to establish that the bankrupt had a reasonable excuse for the conduct or failure that constituted the special ground.
For this purpose, special ground means a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).
…
(3) If the Inspector-General is not satisfied as mentioned in subsection (1), the Inspector-General must confirm the decision
·section 149Q:
An application may be made to the Administrative Appeals Tribunal for the review of:
(a)a decision of the Inspector-General on the review of a decision of the trustee to file a notice of objection; or
(b)…
Regulation 7.01A of the Bankruptcy Regulations 1996 (Cth) (the Regulations) is as follows:
For paragraph 149D(1)(d) of the Act, a bankrupt is taken to have failed to comply with a request to provide information if the bankrupt has provided information that is incomplete or inaccurate.
PRELIMINARY ISSUE
Was the Respondent’s decision on review provided in time?
At the commencement of the hearing the Applicants handed up a bundle of documents (A3) which, on the Applicants’ submission, showed that the Respondent had not provided written notice of his decision on the review of the Trustee’s decision to file the Objection within 60 days of the Applicants seeking that review as required by s 149K(5) of the Act (see [16] above). On that basis the Applicants sought a decision that the Reviewable Decision be “…revoked on the grounds of contravention of s 149K of the Bankruptcy Act 1966” (A3, p 31).
That application by the Applicants is misconceived. Firstly, the documents provided by the Applicants in Exhibit A3 show that the documents required by s 149K(3) for a valid request for review of the Trustee’s decision to lodge the Objection were not provided until 14 November 2016 at the earliest. The Applicants appear to claim that all of the documents, apparently including those required by s 149K(3), although that is not clear, were sent “via a website called wetransfer” (A3, p 6). From the documents included in A3 it appears that the email was sent to the email address “[email protected]”. It is not clear how sending documents to that particular website would be service on the Respondent. Further, there is no evidence before the Tribunal what those documents were or whether they were actually received. It does appear that over the days following 13 November 2016 (which was a Sunday) various other documents were provided by the Applicants to the Respondent including two lever arch files of documents apparently provided on 18 November 2016 (A3, p 7).
If the request and the documents required for a valid request for a review of a decision under s 149K(3) of the Act were received by the Respondent at the earliest on 14 November 2016 and potentially not until 18 November 2016, the issue of the Respondent’s decision on 13 January 2017 was within 60 days.
Secondly, even if the Applicants’ calculation of the time for the Respondent to provide notice of his decision is correct, which is not the case, s 149P(6) of the Act provides that:
If, within 60 days after lodgement of a request by a bankrupt for the review of the trustee’s decision to file a notice of objection, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the decision and confirmed it under subsection 149N(3).
The effect of the above provision is that the decision of the Trustee to lodge the Objection will, in any event, be taken to have been confirmed even if the Respondent’s actual decision was not issued within the 60 days. Under s 149Q of the Act, this Tribunal’s role is to review the Respondent’s decision to confirm the Trustee’s decision whether that be a decision to confirm taken to have been made under s 149P(6) of the Act or a decision to confirm actually made by the Respondent.
There is, accordingly, no merit in the Applicants’ application referred to in [18] above and it is rejected.
THE ISSUES
The issues before the Tribunal are whether:
(a)the Objection specifies at least one “special ground”;
(b)there is sufficient evidence to support the existence of at least one special ground specified in the objection; and
(c)if the Applicants had failed to provide the information requested, whether the Applicants have failed to establish that they had a reasonable excuse for that failure.
THE SUBMISSIONS
The Applicants’ submissions
The Applicants, in Exhibit A1 dated 29 September 2017, submitted that the Objection was “…inappropriately and unfairly given by the trustee” as they replied to the Trustee’s email of 29 August 2016 (see [9] above) on 31 August 2016. The Applicants submit they sent the email twice despite the Trustee’s claim that he had not received anything from the Applicants. The Applicants provided an “Email Investigation Report” detailing the “…cyber activity and action by Mr Lopez…” and submitted that they had provided the Respondent “…with a documented history of our bankruptcy specifically to show the deceitful conduct of Mr Lopez and [their] compliance to all reasonable requests” (A1, p 1).
The Applicants made further submissions by Exhibit A2 dated 23 March 2018. Again these submissions made claims of misconduct by the Trustee. These submissions did, like the submissions in Exhibit A1, claim that the Applicants had provided the information sought by the Trustee. In particular the Applicants submitted that (A2, p A):
The Applicants did comply by fully and truly disclosing to the trustee such reasonable information about all and any of the Applicants’ conduct and examinable affairs as the trustee reasonably required.
(Original emphasis)
Many of the submissions made by the Applicants were misconceived and/or irrelevant to the issues to be determined by this Tribunal. The power of the Tribunal is limited to the powers that are conferred on the Inspector-General under s 149N of the Act when reviewing a trustee’s decision to file a notice of objection (see Playford and Inspector-General in Bankruptcy [2018] AATA 19 citing at [11] Neffati and Inspector-General in Bankruptcy [2016] AATA 941).
The role of the Tribunal, standing in the shoes of the Respondent, is to make a determination on whether the Objection should or must be cancelled or should or must be confirmed applying s 149N of the Act. The allegations made by the Applicants against the Trustee are irrelevant to that exercise. The Tribunal will take the Applicants’ case to be that the Trustee’s requests were not valid, that they did, in any event, provide the information sought by the Trustee, or insofar as they did not, they had a reasonable excuse and that therefore the ground upon which the Trustee relied in the Objection is not supported by the evidence and the Objection must be cancelled.
The Respondent’s submissions
The thrust of the Respondent’s contentions is that:
(a)the Objection specifies one special ground, namely under s 149D(1)(d) of the Act, being a failure by the Applicants’ to provide written information about the Applicants’ property having been requested to do so by the Trustee;
(b)the evidence supports that ground; and
(c)the Applicants have failed to establish a reasonable excuse for failing to provide the information sought.
CONSIDERATION
Does the Objection specify at least one “special ground”?
The Objection (T4) specifies only one ground, namely, that under s 149D(1)(d) of the Act which is that:
The bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, income or expected income, failed to comply with the request.
Section 149N(1A) of the Act specifies the ground identified in s 149D(1)(d) of the Act as being a “special ground” for the purposes of s 149N(1A) of the Act. The Tribunal is therefore satisfied that the ground specified in the Objection is a special ground for the purposes of s 149N(1A) of the Act.
Is there sufficient evidence to support the existence of at least one special ground specified in the objection?
As there is a special ground, by operation of s 149N(1A) of the Act, the Objection must not be cancelled if:
(a)there is sufficient evidence to support the existence of that special ground; and
(b)the Applicants have failed to establish that they had a reasonable excuse for the failure to provide the information sought by the Trustee.
Before looking at the facts relevant to this issue and considering the operation of s 149N(1A) of the Act, the inter-relationship between the subsections of s 149N of the Act needs to be considered. Previous decisions in the Tribunal have analysed this inter-relationship and in particular the inter-relationship of ss 149N(1) and 149N(1A) of the Act. Deputy President Forgie in Rimanic and Inspector-General in Bankruptcy [2010] AATA 875 (Rimanic) considered this issue in some detail from [26] onwards. This Tribunal agrees with and adopts Deputy President Forgie’s analysis of those subsections. As Deputy President Forgie noted at [28], a succinct statement of the operation of those subsections is contained in the decision of Senior Member Friedman in Caruana and Inspector-General in Bankruptcy [2008] AATA 307 at [13]:
In order to succeed in obtaining a cancellation of a special ground of objection Mr Caruana must show that at least one of the conditions in s 149N(1) of the Act applies and that the circumstances in s 149N(1A) of the Act do not apply, otherwise the Tribunal must confirm the decision under s 149N(3).

As Deputy President Forgie points out, the only caveat to the acceptance of Senior Member Friedman’s summary of the operation of the section is that insofar as it suggests that the bankrupt has a burden or onus of proof to establish that one of the circumstances identified in subsections (a) to (d) of s 149N(1) exists, that is not correct. No such onus arises under the Act. In accordance with the general principles in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) the Tribunal is to put itself in the position of the person making the decision under review. Deputy President Forgie summarised the position at [31] in Rimanic as being:
…All that is required in relation to s 149N(1) is that the Inspector-General, and so the Tribunal, is “satisfied”. That does not impose a burden of proof upon a party to the application. All that it does is indicate the standard to which the Inspector-General, and so the Tribunal, must be persuaded. In the absence of any statutory provision to the contrary, the standard of proof applicable in civil proceedings in the courts is that applicable in the Tribunal i.e. on the balance of probabilities.
With those principles in mind, is there sufficient evidence to support the existence of the identified special ground?
Was there a request fulfilling the requirements of s 149D(1)(d) of the Act?
Section 149D(1)(d) of the Act has a number of elements all of which must be satisfied for that section to apply even before there is any consideration of whether the bankrupt has complied with the request. The elements are:
·the request must be to the bankrupt (element 1);
·the request must be in writing (element 2);
·the request must be by the trustee (element 3);
·the request must be to provide written information (element 4); and
·the information requested must be about the bankrupt’s property, income or expected income (element 5).
As far as the Tribunal can determine there has not been any judicial consideration of the specific requirements of s 149D(1)(d) of the Act and the consequences of a failure to comply with such requirements.
On first principles of statutory interpretation, however, all words should be given meaning and effect (Pearce DC and Geddes RS, Statutory Interpretation in Australia (7^th ed, LexisNexis Butterworths, 2011) at 2.26 citing Commonwealth v Baume (1905) 2 CLR 405 at 414), courts are not at liberty to treat any word or sentence as superfluous or meaningless (see WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 1312 at [36]).
Applying the principles emerging from the above cited cases, a failure under s 149D(1)(d) of the Act to comply with the specific requirements of that section would in the Tribunal’s view render such request invalid. This is particularly the case where the failure to comply with the request has such significant consequences, in this case a five year increase in the duration of the bankruptcy (see [16] above).
In the Objection the Trustee, under the heading “Evidence”, asserted that:
Letters to the Bankrupt (sic) as follows requiring their attention to the provision of written information relative to the details and location of assets and the contact details of parties/representatives in possession and delivery of artworks (“Assets”)…
Under that heading there are 26 communications described which the Trustee claims comprise the relevant requests. The first thing that is noticeable about the list is that many of them are not letters, are not from the Trustee and are not communications to the Applicants. There are five emails from the Applicants, a letter from the Applicants’ lawyers, emails from “AFSA” (Australian Financial Security Authority), two instances of what are described as “telephone diaries” and a document described as “Descriptions and reviews of the Assets”. None of these documents could be a request complying with the requirements of s 149D(1)(d) of the Act. Of the 26 identified documents, only 15 are described as either letters or emails from the Trustee. The rest must be ignored.
The list in the Objection was further narrowed by the Respondent. At paragraph 8 of the Respondent’s SFIC, the Respondent nominates only seven of the documents listed in the Objection as being requests for information coming within the scope of s 149D(1)(d) of the Act. In relation to each of those nominated documents the Tribunal comments as follows:
Letter dated 19 September 2014 (R3.1, T10, page 151).
This letter covers a number of different issues. It starts by referring to “your emails dated 19 September 2014”. Unfortunately, those emails are not identified and the Tribunal therefore cannot assess what, if any, impact or contextual influence they may have on the contents of the letter, including any request for information contained in the letter. This problem, unfortunately, is not isolated to this letter. The manner in which the T documents (R3.1 and R3.2) were presented (filed by the Respondent pursuant to his obligation under s 37 of the AAT Act), made the Tribunal’s job of analysing the evidence difficult. The T documents, comprising 646 pages, were in no particular order, or at least none that the Tribunal could discern, and appeared to be copies of bundles of documents sent to the Trustee by the Applicants over a period of years. Many appeared to be incomplete copies of documents or were parts of email chains, notes, or comments (some handwritten on the face of letters or emails) the provenance of which were not identified or apparent. One of the T documents, T10, was 558 pages made up of possibly hundreds of documents. Even the seven documents identified in the Respondent’s SFIC relied on as being the requests for information made by the Trustee appear to be copies of letters included in the material sent by the Applicants to the Trustee. There was no affidavit or witness statement by the Trustee or anyone on behalf of the Respondent setting out the documents on which the Trustee relied in asserting that requests for information had been made and particularising how the correspondence from the Applicants, which was voluminous, failed to provide the information sought.
Looking at the letter of 19 September 2014, having referred to the emails (unidentified) from the Applicants, the first part of the letter grants an extension of time for the first-named Applicant to provide certain documents. There is no request in this part of the letter for the provision of written information by the Applicants.
The next part of the letter refers to a “Mr Garrick” providing certain documents by a specified date. There is no explanation of who Mr Garrick is, however, it is likely that this is a reference to the second-named Applicant. Again, there is no request by the Trustee in this part for the provision of written information. Further, insofar as it is a request for information, the reference to “Mr Garrick” providing the information makes it a request to the second-named Applicant only.
The third part of the letter, commencing at the last paragraph on the first page, states:
We require that Mr Garrick provide us by COB today the following information:

1) Contact details of each overseas representative in respect of crystal art, including names, telephone numbers, addresses and email addresses.
2) Provide details of all Yozique are pieces (art in fibre), including:
-Number of fibre art pieces in existence at the date of bankruptcy
-Number of fibre art pieces in production and produced since commencement of bankruptcy
-Number of fibre art pieces sold since bankruptcy, if any
-Details of the fibre art pieces, including dimensions and art title
-Details of the specific current location (address) of each fibre art pieces (sic)
-In the event the art pieces are held by other parties, provide us with the names, telephone numbers and email addresses of those parties for each art piece.
(Original emphasis)
While the above does seek information, it does not request the information from the Applicants, but rather only from the second-named Applicant, assuming that the reference to Mr Garrick is meant to be a reference to the second-named Applicant.
Even if the request could be considered to be a request for the Applicants to provide the information through an agent, the request does not specify that the information must be provided in writing, one of the elements of s 149D(1)(d).
The final part of the letter, commencing at the top of the second page, (R3.1, T10 page 152) asks some questions about identified bank accounts, however, again, does not require the information to be provided in writing. The Tribunal notes that it seems that this information relating to the bank accounts was provided by the Applicants in an email sent on 23 September 2014 (R3.1, T10, p 160).
In respect of each of the elements of s 149D(1)(d) the Tribunal finds:
·Element 1 - While the letter is addressed to both Applicants, the sections which could be considered to “require” information to be provided, appears to relate only to the second-named Applicant (assuming that Mr Garrick is meant to be Mr Garrick Jones). It is therefore not clear that this element is satisfied.
·Element 2 – This element is satisfied.
·Element 3 - None of the documents relied on by the Respondent, including this one, as far as the Tribunal can tell, was signed by the Trustee. Again, the Tribunal was not assisted in this regard by there being no affidavit or witness statement provided by the Trustee or anyone else on behalf of the Respondent. The signature blocks in the relevant letters were “Melsom Robson For the Trustees” or “Melsom Robson For the Trustee”. The Tribunal accepts that Evan Verge and George Lopez were appointed joint and several trustees of the Applicants’ bankrupt estates in or around September 2014 and that Mr Verge, sometime in June 2015, ceased to be a trustee after which time Mr Lopez continued as the trustee of the bankrupt estates of both Applicants. The Tribunal also accepts that based on the letterhead of Melsom Robson, Mr Verge and Mr Lopez were partners of Melsom Robson (R3.1, T10 p 85) and that letters sent by Melsom Robson were sent “by the trustee” for the purposes of s 149D(1)(d) of the Act. As this letter was from Melsom Robson, the Tribunal accepts that element 3 is satisfied.
·Element 4 - This element is not satisfied. Section 149D(1)(d) refers to a request “to provide written information”. Taken literally, that could mean that the information requested has to be written information, that is information already in written form. Assuming, however, that that is not the intention of the legislation but rather the intention is that the information to be provided by the bankrupt must be provided in writing, the requirement is that the request must specify that that information sought has to be provided in writing. This document does not meet this requirement.
·Element 5 - The information sought would appear to satisfy this element.
Letter dated 22 September 2014 (R3.1, T10, page 158)
The letter states that:
We require that you both provide us by COB 23 September 2014 the following details… including:
-List of all art pieces created, including those prior and post to bankruptcy
-List of all art pieces sold, including those prior and post to bankruptcy
-Details of all art pieces, including dimensions and art title
-Details of the specific current location (address) of each art piece
-In the event that art pieces are held by others, provide us with the names, telephone numbers, addresses and email addresses of those parties for each art piece.
(Original emphasis)
That letter also referred to s 265(ca) of the Act (the Tribunal assumes that this is meant to be a reference to s 265(1)(ca) of the Act) and advised that the penalty for a failure to comply with that section was imprisonment for one year. It also said that “…pursuant to s 149D(d) (sic) your refusal to provide the abovementioned information would be grounds for extension of your bankruptcy” (the Tribunal assumes that the reference here to s 149D(d) is meant to be an reference to s 149D(1)(d) of the Act).
While that letter requests information, it does not require that the information sought be provided in writing.
In relation to each of the elements:
·elements 1-3 and 5 are satisfied; and
·element 4 is not satisfied.
Letter dated 10 June 2016 (R3.2, T10, page 468)
The full text of this letter was as follows:
We refer to previous correspondence in relation to art pieces overseas and enquire in particular if any of the pieces are currently located in Milan, Italy.
Could you please advise the location and contact details of the authorised agent as an interested party has requested the information to view the art pieces in Milan.
We look forward to your prompt response.
Again, while this letter sought the “location and contact details of the authorised agent”, it did not specify that that information had to be provided in writing.
In relation to each of the elements:
·elements 1-3 and 5 are satisfied; and
·element 4 is not satisfied.
Email from Ms Wong of Melsom Robson dated 19 July 2016 (R3.2, T10, page 472)
The full text of this email, which appears to have been sent to the first-named Applicant’s email address, was:
Dear Sir & Madam,
Could you please advise if you have the location and the contact details (telephone number and/or email address) of the agent in Nice to view the art pieces.
Regards,
Janis
It appears from page 472 of the T documents that this email was a response to an email sent by the first-named Applicant on 24 June 2016 to Ms Wong which referred to the Trustees’ letter of 10 June 2016 (presumably the document referred to at [54] to [56] above). The Applicants’ email relevantly advised:
…We of course agree to providing you with the location and contact details where the art pieces are currently in storage. The art pieces are currently held in Nice by an agent and we will need to obtain the exact location address and the name of the responsible employee and reference details.
The email of 19 July 2016, of itself does not seek any information which had not been sought previously and, if construed literally, does not even ask for any information which would come within the scope of s 149D(1)(d) but rather asks whether the Applicants have the location and contact details. It does not actually ask for those details. Even if it is read to be asking for those details, it does not ask that that information be provided in writing.
In relation to the elements:
·elements 1, 2 and 5 are satisfied;
·element 3 – There is no evidence of Ms Wong’s status or authority to act on behalf of the Trustee. It is therefore not clear on the evidence whether this element is satisfied; and
·element 4 is not satisfied.
Email from Ms Wong to the Applicant’s email address dated 5 August 2016 (R3.2, T10, page 479)
The full text of the email, which appears form page 479 of the T documents to include the email of 19 July 2016 referred to at [57] to [60] above, was:
Dear Sir/Madam,
We have not received the information as requested. Could you please urgently attend to this matter as the interested party requires this information to plan their trip.
Regards
Janis
This email, insofar as it can be treated as a request for information, adds nothing to the email of 19 July 2016. It does not require any information to be provided in writing.
In relation to the elements:
·element 1, 2 and 5 are satisfied;
·element 3 – As with the email referred to in [57], it is not clear that this element is satisfied; and
·element 4 is not satisfied.
Letter dated 25 August 2016 (R3.2, T10, page 482)
This letter referred to the Melsom Robson letter of 10 June 2016, e-mails on 19 July 2016 and 5 August 2016 and telephone messages left on 2 August 2016 and 16 August 2016. It then referred to an email of 24 June 2016, which the Tribunal assumes is the email of that date from the first-named Applicant referred to in [58] above, and advised that the Trustee had “…not received any response to our e-mails and telephone messages with this information to date”.
The letter then went on to cite s 149D(1)(d) of the Act and advised that:
…if you fail to provide the address and contact details of the agent in charge with the relevant references for the art pieces held in Italy by 26 August 2016, the Trustee would (sic) proceed to lodge an objection to your discharge from bankruptcy…
(Original emphasis)
While the summary of the effect of s 149D(1)(d) of the Act is a written request for information to be provided in writing, like the previous requests identified in this letter, this letter did not stipulate that the information sought had to be provided in writing.
This letter refers to previous correspondence, cites s 149D(1)(d) of the Act and advises that if information is not provided, an objection to the Applicants’ discharge from bankruptcy will be lodged. It does not specifically request any information, although it could be taken to be renewing previous requests.
In relation to the elements therefore, with the above caveat that it is not, of itself, a request for information:
·elements 1-3 and 5 are most likely satisfied; and
·element 4 is not satisfied.
Letter dated 29 August 2016 (R3.2, T10, page 488)
This letter referred to the previous communications referred to above and then advised:
Regardless of your description of the items, we now require that you provide us with the names, addresses, email addresses and telephone numbers of every party that currently holds any pieces or has held pieces within the past two years, including the parties in Milan and Nice, with details as to which party currently holds items and dates as to when the parties held them if not held currently.
Failure to provide that information by close of business on 30 August 2016 will result in immediate objection to your discharge from bankruptcy pursuant to Section 149A(2)(a)(i) of the Bankruptcy Act.
(Original emphasis)
There is no requirement in this letter to provide either the information previously sought or the information sought for the first time in this letter in writing.
In relation to each of the elements:
·elements 1-3 and 5 are satisfied; and
·element 4 is not satisfied.
While some of the communications relied on by the Trustee and the Respondent satisfy some of the elements of s 149D(1)(d) of the Act, none of the communications satisfies the requirement that the request must be a request for the provision of the information in writing. As a result none of the communications relied on by the Respondent as requests for the purposes of s 149D(1)(d) of the Act were valid for the purposes of that section.
The Tribunal finds that given the serious consequences of the failure to provide the information requested pursuant to s 149D(1)(d) of the Act there needs to be strict compliance with the requirements of s 149D(1)(d) of the Act. In that regard the consequences of a failure to comply with a request under s 149D(1)(d) of the Act are not dissimilar in seriousness to a failure to comply with a bankruptcy notice. The law requires strict compliance with the statutory requirements for a bankruptcy notice (see Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71). Similar requirements of strict compliance with respect to form and content of notices apply to other notices where the consequences of non-compliance are serious. See, for example the requirement for strict compliance with regard to notices giving a right to exercise the power of sale under a mortgage (Indigenous Business Australia v Kani [2012] NTSC 24 at [15] citing Hunter v Hunter [1936] AC 222). The same principle should apply to a request under s 149D(1)(d) of the Act.

By reason of the Tribunal’s finding that none of the requests for information relied on by the Respondent complied with the requirements of s 149D(1)(d) of the Act, the Tribunal finds that there is insufficient evidence to support the existence of the ground of objection for the purposes of s 149N(1)(b) of the Act and that there is not sufficient evidence to support the special ground specified in the Objection for the purposes of s 149N(1A)(b) of the Act. Accordingly, pursuant to s 149N(1) of the Act the Objection must be cancelled.
Was the information requested provided?
Given the Tribunal’s finding that none of the requests relied on by the Respondent met all of the elements of a request for the purposes of s 149D(1)(d) of the Act, it is not necessary for the Tribunal to consider whether the information requested was provided. Notwithstanding that, it does appear to the Tribunal that a significant part, if not all, of the information sought by the identified communications was provided and/or was known to the Trustee in any event.
The information sought in the letters of 19 September 2014 and 22 September 2014 appears to have been provided, as far as the Tribunal can tell, on 23 September 2014 (R3.1, T10, pp 162-164). By an email of that date to Ms Lee of Melsom Robson, the Applicants provided the details of the art pieces sought in the Trustee’s letters of 19 September and 22 September 2014, including the description and dimensions of each piece, the country in which each piece was located and the name and contact details (email and phone numbers) of the representative in each country who had control of the art pieces. As the Applicants noted in that communication, they did not have the home address of the representatives in all cases.
Further, insofar as the letter of 19 September 2014 sought information in relation to certain bank accounts, as noted at [48] above that information appears to have been provided by the Applicants on 23 September 2014.
There does not seem to have been any response from the Trustee to the effect that the information provided was not sufficient. Most of the communications relied on by the Respondent as being requests for information that followed seemed to be in effect asking for the information that had already been provided by the Applicants on 23 September 2014.
Even the last letter relied on by the Respondent, the letter of 29 August 2016, stated:
You may recall that the Trustee already has contact details of some of the parties you have dealt with, but as requested by you, has not contacted them (R3.2, T10, p 488).
From this it seems that the Trustee already had some of the information, presumably provided by the Applicants, which he sought and which would have enabled him to locate the art pieces but had he not made contact with those agents. Even though it appears to have been at the request of the Applicants that he did not contact these agents, it was his choice not to do so.
Accordingly, even if the elements necessary for a valid request under s 149D(1)(d) of the Act were met, the Tribunal is not satisfied that the final requirement of s 149D(1)(d) of the Act, namely, that the Applicants have failed to comply with the request is supported by the evidence.
Given the Tribunal’s findings as to the invalidity of the requests for information and that it appears that some, or potentially all, of the information requested was provided, there is no need for the Tribunal to consider the third issue identified in [24] above.
DECISION
The decision under review is set aside and in substitution for that decision there be a decision that the Objection be cancelled.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

......[sgd]..................................................................
Associate
Dated: 5 September 2018

Date of hearing: 1 June 2018

Applicants: In person: self-represented

Counsel for the Respondent: Mr Tim Burrows

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	1 June 2018
Applicants:	In person: self-represented
Counsel for the Respondent:	Mr Tim Burrows
Solicitors for the Respondent:	Australian Government Solicitor