Nguyen v Official Trustee

[2002] FMCA 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGUYEN v OFFICIAL TRUSTEE [2002] FMCA 330

BANKRUPTCY – Annulment application – whether discretion to make order for Trustee’s costs, charges and expenses pursuant to s.154(1)(b) of the Bankruptcy Act – whether discretion to defer order pending arrangements to pay creditors or trustee’s costs.

Bankruptcy Act 1966, ss.153B, 154(1)(b)

Kathleen Wong; ex parte Wong v Robinson (unreported delivered on 15 September 1995)

Re Raymond; ex parte Raymond (1992) FCR 424
Re Griffiths; ex parte Huntley (1892) 3 BC (NSW) 6

Applicant: VAN LO NGUYEN

Respondent: OFFICIAL TRUSTEE

File No: MZ 1119 of 2002

Delivered on: 9 December 2002

Delivered at: Melbourne

Hearing Date: 9 December 2002

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr P. Gillett

Solicitors for the Applicant: Consumer Credit Legal Service

Counsel for the Respondent: Mr M. Galvin

Solicitors for the Respondent: Official Trustee

ORDERS

1. The bankruptcy of the applicant pursuant to the sequestration order made on 16 July 2002 is annulled.

2. The sequestration order made on 16 July 2002 be set aside.

3. That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1119 of 2002

VAN LO NGUYEN

Applicant

And

OFFICIAL TRUSTEE

Respondent

REASONS FOR JUDGMENT

1. This is an application for annulment of bankruptcy by Van Lo Nguyen, who is the applicant, against the respondent, Official Trustee.  The application was filed on the 4th day of November 2002.

2. By an amended application for annulment of bankruptcy filed 15 November 2002, the applicant on the grounds of the accompanying affidavit material seeks orders that

   (1)the bankruptcy of the applicant pursuant to a sequestration order made on 16 July 2002 is annulled;

   (2)the sequestration order made on 16 July 2002 is set aside;

   (3)that there be no order as to costs; and

   (4)such other orders as the court sees fit.

3. It is clear from the material that in this application the sequestration order which was made on 16 July 2002 was an order based upon a creditor's petition by the then applicant creditor, Bendigo Bank Ltd.  The amount said to be owing the petitioning creditor was $19,712.97.

4. When this matter was called on for hearing this day, there was no appearance for the petitioning creditor and indeed no appearance from any other creditors.  Mr Galvin, however, sought to appear for the Official Trustee and had provisionally not opposed the making of the orders for annulment of the bankruptcy and/or setting aside the sequestration order made on 16 July 2002.

5. A substantive issue before this court which has been agitated for and on behalf of the Official Trustee was that this court ought to consider making an annulment order under section 153B of the Bankruptcy Act (1966) (the Act), the further entitlement that the trustee has under section 154(1)(b) of the Bankruptcy Act. That subsection provides as follows:

   “(1)If the bankruptcy of a person (…..) is annulled under this Division:

   ….

   (b) the trustee may apply the property of the former bankrupt still vested…