Jonson v Prentice

[2000] FCA 427

FEDERAL COURT OF AUSTRALIA

Jonson v Prentice [2000] FCA 427

KEITH MICHAEL JONSON v MAXWELL WILLIAM PRENTICE & ANOR

N 7224 OF 2000

LINDGREN J
29 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7224 OF 2000

BETWEEN:

KEITH MICHAEL JONSON
APPLICANT

AND:

MAXWELL WILLIAM PRENTICE AS TRUSTEE OF THE ESTATE OF KEITH MICHAEL JONSON
FIRST RESPONDENT

THE OFFICIAL RECEIVER IN BANKRUPTCY
SECOND RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

29 MARCH 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Maxwell William Prentice as trustee of the Estate of Keith Michael Jonson be added as first respondent.

2.The Official Receiver in Bankruptcy be added as second respondent.

THE COURT DECLARES THAT:

1.Keith Michael Jonson made out and filed in the office of the Registrar in Bankruptcy for the District of New South Wales a statement of his affairs on 9 February 1995.

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	N 7224 OF 2000

BETWEEN:

KEITH MICHAEL JONSON
APPLICANT

AND:

MAXWELL WILLIAM PRENTICE AS TRUSTEE OF THE ESTATE OF KEITH MICHAEL JONSON
FIRST RESPONDENT

THE OFFICIAL RECEIVER IN BANKRUPTCY
SECOND RESPONDENT

JUDGE:	LINDGREN J
DATE:	29 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. By an application filed on 14 March 2000, the applicant (“Dr Jonson”) applied for an order declaring that his statement of affairs in his bankruptcy be deemed to have been filed on or about 6 or 9 February 1995 in accordance with the requirements of the Bankruptcy Act 1996 (Cth) (“the Act”). 

2. The application named no respondent.  At least the trustee in bankruptcy of Dr Jonson’s bankrupt estate should have been so named.  In fact, in some later documents on the Court file that trustee in bankruptcy, Maxwell William Prentice of Prentice Parbery Barilla, chartered accountants, and the Official Receiver in Bankruptcy are shown as respondents.  However, a formal order has apparently not been made joining them and I will make such an order this afternoon.  On the hearing they have both appeared through legal representatives.

3. Because there was no appearance of anyone representing the trustee in bankruptcy or the Official Receiver before her on 21 March 2000, Deputy Registrar Quinn on that day adjourned the hearing of the application to 11 April 2000 and directed Dr Jonson to serve the trustee and the Official Receiver in Bankruptcy and to file an affidavit of service. 

4. I need not relate the various events which have occurred subsequently; it suffices to say that Dr Jonson applied for review of the Registrar’s decision and also, in effect, for the final relief that he was seeking in his application.

5. The legal representatives of both respondents have appeared and indicated that they were willing to have the matter proceed to a final hearing.  This has enabled the Court to deal with the substance of the matter without delay.

6. A sequestration order was made in respect of the estate of Dr Jonson on 12 December 1994.  Section 54 of the Act required that where a sequestration order was made, the person against whose estate it was made, within fourteen days from the date on which he was notified of the bankruptcy, make out and file in the office of the Registrar in Bankruptcy a statement of his affairs and furnish a copy of the statement to the trustee in bankruptcy. 

7. Section 149 of the Act provides that a bankrupt is discharged at the end of a period of three years from the date on which the bankrupt filed his or her statement of affairs. In this case there is not on the bankruptcy file a statement of affairs made out by Dr Jonson.  The case raises an issue which has arisen not infrequently as to compliance with s 54 and the date of commencement of the three year period. 

8. Dr Jonson testifies that he did file his statement of affairs with the Registrar in Bankruptcy.  There is circumstantial evidence tending to support him.  A copy of his statement of affairs which is signed but not dated is in evidence.  It is a voluminous document.  In his affidavit, Dr Jonson says that he was aware of the consequences of not lodging his statement of affairs with the Registrar in Bankruptcy and annexed to his affidavit is a copy letter dated 10 January 1995 from Mr Prentice to him referring to an earlier letter of 22 December 1994 from Mr Prentice to Dr Jonson which had advised Dr Jonson of his obligation to file his statement of affairs with the Registrar in Bankruptcy within fourteen days after the date on which he was notified of the bankruptcy.  Mr Prentice’s letter of 10 January 1995 stated: 

   “If you do not comply with the requirements of the Act within 7 days of the date of this letter, it is my intention to report the matter to the Court.”

9. Dr Jonson states that he prepared four photo copies of his statement of affairs, placed two copies in a large envelope which he addressed to the Registrar in Bankruptcy and a further two copies in another large envelope which he addressed to his trustee in bankruptcy, retaining the original statement of affairs in his own possession.  He states that he does not recall the date on which he commenced or completed preparation of his statement of affairs but states that he recalls delivering one envelope to Mr Prentice’s office and the other to the office of the Registrar in Bankruptcy on the same day.  He identifies that day as a day on which he visited a store of John Pardoe.  There is in evidence a copy of a page from Dr Jonson’s diary for February 1995 recording “John Pardoe” on 6 February.  This causes Dr Jonson to believe that 6 February 1995 may well have been the date on which he attended the office of the Registrar in Bankruptcy.

10. Dr Jonson states that he dropped off the envelope at Mr Prentice’s office first.  He says that he then walked to the office of the Registrar in Bankruptcy and waited in a queue (possibly with a ticket) and handed over the envelope with the two copies for the Registrar to an officer at the desk.  He states that he then left the Court.  He has no copy of a letter to Mr Prentice or to the Registrar enclosing the copies of his statement of affairs but it seems to me that this does not tell one way or the other and is equally consistent with his having delivered and not delivered the two envelopes to their addressees in the manner stated. 

11. Dr Jonson received a “Notice to Creditors of Bankruptcy” dated 13 February 1995 from Mr Prentice, which states in the second paragraph:

    “The statement of affairs filed by the bankrupt with the Registrar in Bankruptcy is attached for your information.”

    Although Mr Prentice was informing creditors by this document that as at 13 February 1995 Dr Jonson had filed his statement of affairs with the Registrar, this may reflect only an assumption on Mr Prentice’s part.  But at least the Notice to Creditors of Bankruptcy makes it clear that the statement of affairs was in existence by 13 February 1995.

12. Dr Jonson received from Mr Prentice a letter dated 17 February 1995 which commenced:

    “On 9 February 1995 I received a copy of your statement of affairs.”

    This sentence shows that the statement of affairs was in existence by 9 February 1995 and is the basis for the alternative date relied on by Dr Jonson as the date on which he filed the statement of affairs with the Registrar in Bankruptcy.  That is, if he is wrong as to Monday, 6 February 1995, at the latest his statement of affairs must have been filed with the Registrar by Thursday, 9 February 1995. 

13. Nothing has occurred in the intervening period to suggest to Dr Jonson that he had not filed his statement of affairs with the Registrar in Bankruptcy in February 1995.  For example, the issue was not raised during the course of his public examination in 1997.  This is not necessarily probative of its having been filed: perhaps all concerned were using copies made from Mr Prentice’s copy or copies.

14. Paragraph 16 of Dr Johnson’s affidavit states that some time after 16 April 1995, he examined his bankruptcy file which was in a carton in the office of the Registrar in Bankruptcy to obtain a copy of a certain judgment and transcript.  He states:

    “My recollection is that I noted that a full copy of my statement of affairs was amongst the documents in the carton.  It was held together with a paper binder punched through a hole in the top left hand corner.  I do not recall how many times I inspected my file.”

    He states that his reason for examining his file was that he was unable to locate the judgment and transcript elsewhere.

15. On or about 1 December 1997 Dr Jonson received a letter from Mr Prentice referring to his statement of affairs having been filed with the Registrar in Bankruptcy on 14 February 1995.  There seems to be no support in other evidence for that date and it will be recalled that Mr Prentice’s own Notice to Creditors of Bankruptcy was dated 13 February 1995 and enclosed a copy of the statement of affairs.

16. Neither Mr Prentice nor the Official Receiver makes any submission against my inferring that the statement of affairs was filed in February 1995.  I am satisfied that it was.  Dr Jonson is clear in his evidence that he attended both Mr Prentice’s office and the office of the Registrar in Bankruptcy on the same day.  It may be that he visited John Pardoe’s store on 9 February as well as on 6 February, although the visit on 9 February was not entered in his diary.  It is unlikely that if Dr Jonson had delivered the two copies of his statement of affairs to Mr Prentice’s office on 6 February 1995, Mr Prentice would have written to Dr Jonson on 13 February stating that he had received a copy on 9 February.  Accordingly, I think that Dr Jonson’s journey, including the filing of his statement of affairs, probably occurred on 9 February 1995 rather than 6 February 1995.

17. I declare that Keith Michael Jonson made out and filed in the office of the Registrar in Bankruptcy for the District of New South Wales a statement of his affairs on 9 February 1995.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             4 April 2000

The Applicant appeared in person
Solicitor for the First Respondent:	Mr K Breckenridge of Henry Davis York
Solicitor for the Second Respondent:	Mr M Murray of the Australian Government Solicitor’s Office
Date of Hearing:	29 March 2000
Date of Judgment:	29 March 2000