NDZC and INSPECTOR-GENERAL IN BANKRUPTCY

[2009] AATA 190

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 190

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2008/3418

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		NDZC

Applicant

And

INSPECTOR-GENERAL IN BANKRUPTCY

  Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:5 March 2009

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2008/3418

NDZC

and

INSPECTOR-GENERAL IN BANKRUPTCY

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 5 MARCH 2009

NDZC appears in person
MS C. ILES appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   The main issue in this case is whether the grounds of objection set out in section 149D(1)(d) have been made out, and that refers to:

The bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expect income, failed to  comply with the request.

I have heard evidence this morning from NDZC, and I’ve also received a letter from her mother regarding the postage of information, which I’ll come to in a minute.  Basically, NDZC says that she complied with the request by the trustee as much as possible, that where it was not possible, there were good reasons for that.  One of them was that she had been denied access to         Street in Frankston South, where copies of documents were held, and that the actions of the trustee in particular meant that she was unable to gain access, and she said that she had been evicted on 11 June 2008. 

The other main arguments that were put forward by NDZC today were relating to her medical condition, that the medical condition had prevented her from complying fully all the things that she would have otherwise been able to do.  And the third aspect is her evidence about the actions by the trustee, Mr Mansell, whom she says acted inappropriately on a number of occasions, and failed to respond to her correspondence, and in general, she says, has hindered her in her efforts to comply with his requests.  She also said that her son, on her behalf, forwarded information on 11 February 2008, and that that information contained a number of documents that were sought by the trustee, and the letter from her mother confirms that the son posted the information from a post office in Yuille Street.  Is that Frankston? 

NDZC:   Pardon?

MR FRIEDMAN:   Where is Yuille Street? 

NDZC:   It’s in Frankston, Frankston Post.  And my son also sent in a photograph of himself, and made the letter and signed it.

MR FRIEDMAN:   Very well.  Thank you.  That she says as evidence that the material was sent to Mr Mansell.  Mr Mansell has said that he has not received that information.  It’s very difficult for me to determine whether that information was sent or not, and if it was sent, it was sent to the address at GPO Box 2831, Melbourne, 3001.  I don't know what happened to that material: if it was sent, if it was lost in the mail, if it was received in Mr Mansell’s office and he lost it, or one of his staff lost it, I don’t know. 

I can only look at what information is before me, and let me say that I don’t disagree, necessarily, with everything that NDZC has said, nor do I accept everything that she has said, because I’m not in a position to know, particularly in relation to matters that are not strictly relevant to this application, and that is matters dealt with by the Family Court and the Federal Magistrates Court, I’m not in a position to know whether they are accurate or not, and I’ve only heard from NDZC as far as her story is concerned.  

It seems to me that looking at the correspondence between NDZC and Mr Mansell as a whole, there seems to be a concession by NDZC following 11 February 2008, when she said that her son posted the information.  There seems to be an acknowledgment based on the correspondence between herself and Mr Mansell that further information was sought by Mr Mansell, and her letters to him suggest that she has been attempting to obtain the information that he has sought, in particularly, a bank statement from Sunway Bank?

NDZC:   Suncorp. 

MR FRIEDMAN:   Suncorp, beg your pardon.  NDZC agreed today that she had great difficulty finding that information.  She said that she eventually collected that information after the settlement on 19 November 2008.  And whilst I can acknowledge and accept that she had great difficulty in obtaining information, particularly that kind of information, as a result of her not being able to gain access to 5 Karina Street, the reality is that that information at least was obtained after the decision of the respondent, confirming the notice of objection. 

On that basis, even thought I accept the medical evidence, and I accept what NDZC tells me about her condition, both now and at the time, that is, throughout the last couple of years, it’s my view that even if I were to accept that the material was sent on 11 February, it seems to me that that information was not complete, in the sense that there wasn’t the bank statement from Suncorp, and the questionnaire was not enclosed as well. 

Now I have heard the explanation from NDZC why she couldn’t complete the questionnaire, but I do accept that as the eviction occurred on 11 June 2008, and the information that was sought was for October 2007 to October 2008, then the trustee should have been given, in the form that he asked, the information that was due to be completed in the questionnaire.  So although I accept that there may well be a lot of information at Karina Street, it’s my view that that in itself is not sufficient to conclude that all the information was provided to the trustee. 

I notice at regulation 7.0(1A), the bankruptcy regulations 1996 provides that for paragraph 149D(1)(d) of the Act, the 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.  Now I am not saying that NDZC did not attempt to provide the information to the best of her ability, but in my view, as I have already said, the information she provided, even including the 11 February 2008 information, was incomplete.

Consequently, there is no discretion, and I must find that she has not – I withdraw that.  I will find that in relation to the objection under section 149D(1)(d), the ground of objection has been made out.  And as it is a special ground, there’s no need for the trustee to state the reasons for objecting to the discharge, and the objection must not be cancelled by the respondent, and I have taken into account the factors A, B, and C about not cancelling an objection.  As a consequence of that, I’m going to affirm the decision under review. 

What that means, NDZC, is that I accept what you’re saying, that you were very unhappy with the actions of Mr Mansell, and I accept what you’re saying, that you’re unhappy with the other aspects of actions by him and other people that prevented you from getting access to the property, but in my view, the ground of objection has been made out under 149(1)(d), and I’m unable to help you today. 

END OF EXTRACT