Lean v Inspector-General in Bankruptcy

[2015] FCCA 2045

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEAN v INSPECTOR-GENERAL IN BANKRUPTCY [2015] FCCA 2045

Catchwords:
BANKRUPTCY – Application for extension of time for renewal of registration as bankruptcy trustee.

Legislation:

Bankruptcy Act 1966 (Cth), ss.33(1)(c), 155D(1)(a)

Bruce Poutney Milner v Inspector-General in Bankruptcy [1998] FCA 1328
Hamilton v Inspector-General in Bankruptcy [2009] FCA 592
Ian Richard Hall v Inspector-General in Bankruptcy [1998] FCA 1327
In the matter of Inspector-General in Bankruptcy [2002] FCA 59

PP McQuade and MGR Gronow, McDonald, Henry and Meek, Australian Bankruptcy Law and Practice (6^th Edn) (Sydney: Thomson Reuters, 2008)

Applicant: GRAEME TREVOR LEAN

Respondent: INSPECTOR-GENERAL IN BANKRUPTCY

File Number: PEG 350 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Perth

Delivered on: 29 July 2015

REPRESENTATION

Counsel for the Applicant: Mr F Carles

Solicitors for the Applicant: Carles Solicitors

For the Respondent: Submitting appearance save as to costs.

ORDERS

1. Pursuant to s.33(1)(c) of the Bankruptcy Act 1966 (Cth) (“the Act”) the time provided by s.155D(l)(a) of the Act for the applicant to apply to the respondent to extend his registration as a trustee in bankruptcy is extended to 14 days from the date of the making of this order.

2. Upon the respondent extending the applicant’s registration as a trustee such registration will be renewed with effect from and including 17 July 2015.

3. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 350 of 2015

GRAEME TREVOR LEAN

Applicant

And

INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

(Delivered extemporaneously and later edited)

1. The applicant, Graeme Trevor Lean, applies under s.33(1)(c) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) for an extension of time for him to apply under s.155D(1)(a) of the Bankruptcy Act to the Inspector-General in Bankruptcy for renewal of his registration as a bankruptcy trustee.

2. The applicant relies on his affidavit sworn 27 July 2015 (“the Applicant’s Affidavit”). It is unnecessary for present purposes to set out in detail the content of the Applicant’s Affidavit.

3. The applicant’s registration as a bankruptcy trustee expired on 17 July 2015. The applicant failed to apply for renewal of his registration before that date due to inadvertence, which may in part have been caused by an office move and change of address earlier in July 2015. It is also possible that the Australian Financial Security Authority did not send a reminder of the renewal of registration, but that possibility rises no higher than that.

4. The application is not opposed by the respondent, the Inspector-General in Bankruptcy, who is responsible for the registration of bankruptcy trustees, who has filed a submitting appearance, and who has signed a minute of proposed consent orders dated 28 July 2015. The Inspector-General in Bankruptcy has consented to orders in the terms sought in the application, together with an order for no order as to costs.

5. Orders similar to those sought in the application have been made in a number of cases, including Ian Richard Hall v Inspector-General in Bankruptcy [1998] FCA 1327, Bruce Poutney Milner v Inspector-General in Bankruptcy [1998] FCA 1328, In the matter of Inspector-General in Bankruptcy [2002] FCA 59 and Hamilton v Inspector-General in Bankruptcy [2009] FCA 592 (“Hamilton”).

6. In Hamilton the applicant did not receive a reminder of renewal from the then Insolvency and Trustee Services Australia and he forgot to renew his registration as a bankruptcy trustee. In Hamilton the Federal Court observed at [6] per Marshall J:

   If the extension were not granted, all work performed on bankrupt estates by Mr Hamilton since 29 March 2008 may not have any legal foundation. A refusal of any extension may require him to refund fees, adversely affecting his practice and lead to the termination of the employment of some of his staff. This result can and will be avoided by the Court granting the relief sought. The failure to apply for an extension was an oversight. No practical injustice arises to any other person by the making of the order sought by Mr Hamilton.

7. Similar considerations apply in some respects in this case. The failure to grant the application would cause significant inconvenience to the more than 100 persons for whom the applicant is presently trustee in bankruptcy, and who are reliant on the applicant as their trustee in bankruptcy to manage their affairs. Considerations of convenience in relation to those bankrupts, and the public interest in relation to the affairs of the estates of the bankrupts, necessitate that the affairs of the bankrupt estates not be disturbed by mere oversight or inadvertence.

8. There is no doubt that the Court has power to extend a time limit for a person to apply for registration as a registered trustee pursuant to s.33(1)(c) of the Bankruptcy Act, even after that time has expired, and that the registration can be renewed with effect from the date it expired: see the cases cited at [5] above, and the commentary at [155D.0.10] of PP McQuade and MGR Gronow, McDonald, Henry and Meek, Australian Bankruptcy Law and Practice (6^th Edn) (Sydney: Thomson Reuters, 2008).

9. The orders sought in the present case are based on those granted in Hamilton, and in the circumstances, and for the reasons set out above, the Court is prepared to grant orders in terms of the minute of proposed consent orders signed by the parties on 28 July 2015.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  29 July 2015