Nicols, Steven v Oates, John Anthony

[1998] FCA 1062

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7764  of  1998

BETWEEN:	STEVEN NICOLS As Trustee of the Estate of John Anthony Ovens Applicant
AND:	JOHN ANTHONY OVENS Respondent
JUDGE:		HILL J
DATE OF ORDER:		25 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The Respondent pay a penalty in the amount of three penalty units

1. The Respondent pay the Trustee’s costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7764 of 1998

BETWEEN:	STEVEN NICOLS As Trustee of the Estate of John Anthony Ovens Applicant
AND:	JOHN ANTHONY OVENS Respondent
JUDGE:		HILL J
DATE OF ORDER:		25 AUGUST 1998
WHERE MADE:		SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter, the Trustee of the estate of Mr Ovens commenced proceedings by application filed on 14 July 1998, inter alia, for the issue of a warrant for the arrest of Mr Ovens for failing to submit a statement of affairs, refusing to co-operate with the Trustee's investigations, and failing to disclose assets.  The Trustee has, in affidavit evidence not objected to, indicated that on 19 February 1998 he forwarded a letter to Mr Ovens requesting the submission of a Statement of Affairs.  Subsequently there was correspondence with Mr Ovens' solicitor and ultimately personal service of a letter dated 29 May requesting a statement of affairs.

The request to file a statement of affairs was not indeed complied with until 18 August. The Trustee no longer seeks a warrant for Mr Ovens' arrest but seeks that the Court impose under the provisions of s 54(1) of the Bankruptcy Act 1966 (“the Act”) a penalty for Mr Ovens' failure to comply with his obligations. Mr Ovens has offered no explanation other than that he says he was preoccupied with his personal affairs. He has made reference to an apprehended violence order which he has obtained against his wife, but that has only happened in the last seven days or so. I have pointed out to Mr Ovens the seriousness of failure to comply with the obligations imposed upon a bankrupt under the Act.

Under the Act these obligations are imposed both for the benefit of the creditors generally as well as the benefit which may accrue to him where compliance with obligations may lead to an earlier discharge than might otherwise be the case.  The solicitor for the Trustee has urged upon me to impose the maximum penalty, it being accepted that the Court has a discretion as to the magnitude of the penalty up to a limit of the five penalty units which s 54 itself prescribes. 

The matter is obviously serious but I take into account the fact that Mr Ovens has now complied with his obligation and perhaps that some part of the delay may have concerned relationships between his wife and himself.  In the circumstances, it seems to me that an appropriate penalty is on this occasion supplied by a penalty of three penalty units.

I order the Bankrupt to pay the Trustee's costs of the application.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:            August 1998

Solicitor for the Applicant:	Mr J. Li of Gordon & Johnstone
The Respondent appeared in person
Date of Hearing:	25 August 1998
Date of Judgment:	25 August 1998