Nixon v Vince
[2002] FMCA 324
•12 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NIXON v VINCE | [2002] FMCA 324 |
| BANKRUPTCY – Statement of Affairs – requirements pursuant to s.54(1) of the Bankruptcy Act satisfied – proceedings in s.306(1) extends to the making out and filing of a Statement of Affairs – Statement of Affairs deemed to be filed which was posted to Official Receiver but was mislaid. Bankruptcy Act 1966, ss.54(1), 54(1)(a), 306(1) Trihakis v Official Receiver (Vic) (1999) FCA 1426 |
| Applicant: | DEIDRE DOROTHEA NIXON |
| Respondent: | PETER VINCE, TRUSTEE OF THE BANKRUPT ESTATE OF DEIDRE NIXON |
| File No: | MZ 590 of 2002 |
| Delivered on: | 12 December 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 July 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms Nixon |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
ORDERS
IT IS DECLARED THAT
The Statement of Affairs signed by the Applicant on 23 June 1999 be deemed to have been filed with the Official Receiver on 24 June 1999 in compliance with the requirements of section 54(1) of the Bankruptcy Act 1966 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 590 of 2002
| DEIDRE DOROTHEA NIXON |
Applicant
And
| PETER VINCE, TRUSTEE OF THE BANKRUPT ESTATE OF DEIDRE NIXON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Deidre Nixon, a bankrupt, who seeks a declaration that a statement of affairs signed by her on 23 June 1999
(a duplicate of the original) which was filed in the office of the Official Receiver in Bankruptcy on 18 June 2002 be deemed to have been filed in the office of the Official Receiver of the Insolvency and Trustee Service of Australia (“the official receiver”) on 24 June 1999.
The application named Peter Vince of Ferrier Hodgson, who is the Trustee for the bankrupt estate of Deidre Nixon, as the respondent and did not name the Official Receiver on the application.
The applicant who appeared for herself, tendered a letter from the Trustee. That letter confirmed that a copy of the bankrupt’s statement of affairs was received from the bankrupt on 24 June 1999 as deposed by the applicant.
The letter also indicated that in the view of the Trustee, the application should cite the respondent as the official receiver, and the Trustee did not believe that he had standing to oppose the application and considered it was a matter for the Official Receiver.
A copy of that letter was forwarded by the Trustee to the Official Receiver on 25 June 2002 and the applicant informed me that she had served a copy of the application on the Official Receiver. I am satisfied that the Official Receiver is aware of the application.
The applicant annexed to her application a copy of the statement of affairs signed by her and dated 23 June 1999. She completed her copy document, details of which indicate that the document was handed to Ferrier Hodgson, the Trustee on 24 June 1999 and posted to the Official Receiver on 23 June 1999. Ferrier Hodgson have confirmed that they received the statement of affairs on 24 June 1999 corroborating the evidence of the applicant in this respect. The applicant asserts that although she posted the statement of affairs to the Official Receiver on 23 June 1999, it was apparently mislaid by the Official Receiver or not received by them through no fault of the Applicant.
It was not until June 2002 that the applicant learned that the Official Receiver did not have the original and within five days of receiving that notice a copy of the original statement of affairs dated 23 June 1999 was sent to the Official Receiver. This occurred on 18 June 2002.
The applicant now wishes to be discharged from bankruptcy at the end of the period of three years from the date on which she believed that she had filed a statement of affairs in the office of the Official Receiver, namely 24 June 2002.
Section 54(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) provides that:
“Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:
(a)make out and file in the office of the Official Receiver for the district in which the sequestration order was made, a statement of his or her affairs; and
(b)furnish a copy of the statement to the trustee.”
Section 149 of the Act provides that subject to certain conditions a bankrupt is discharged at the end of the period three years from the date on which the bankrupt filed his or her statement of affairs. That filing is pursuant to s.54(1)(a) in the office of the Official Receiver.
The applicant seems to have two difficulties which, unless there is some curial intervention, would prevent her discharge and would also mean that the period did not commence running until 18 June 2002.
The Applicant appears to have misunderstood the provisions of s.54(1) of the Act, she filed the statement of affairs with the Trustee and sent a copy to the Official Receiver. This may not have been a problem had the Official Receiver acknowledged receipt of the document, but it appears that it was not received or else it was misplaced and thus not received by the Official Receiver until the Applicant resent it on 18 June 2002. I accept her evidence that she handed the document to the Trustee on 24 June 1999 and posted a copy to the Official Receiver. However, because the document was either not received or misplaced, she is not in a position to establish that she filed it on 24 June 1999.
I am satisfied on the balance of probabilities that the applicant did forward by post a copy of the statement of affairs to the Official Receiver on 23 June 1999.
A bankrupt’s obligation under s.54(1)(a) can be discharged by posting a completed original statement of affairs to the Registrar (Trihakis v Official Receiver (Vic) (1999) FCA 1426) per Kenny J and Sofia v Pattison (unreported 20 October 1997) per Finkelstein J. Although there is no evidence on the Official Receiver’s file the document was received, I am not persuaded to find by that fact alone that it was not posted as deposed to by the applicant. There is no evidence that the statement of affairs of the applicant did not exist or that it was not duly filed. The evidence is that it did exist and that it was filed but that it either did not come into the hands of the official receiver for some other reason, or has been mislaid. In the same way that Kenny J applied the presumption of regularity in Trihakis v Official Receiver, it is I think open to me to apply the presumption of regularity to find that the copy of the statement of affairs had been filed in the office of the Official Receiver as required, and that such filing was effected on or about 24 June 1999.
I further observe that Kenny J in Trihakis indicated that it would not seem to matter whether the original or a copy was sent to the Registrar, because if it was a copy, as in this case the evidence reveals, then that is an irregularity which may be excused under s.306(1) of the Act.
That provision reads:
Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the Court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity that the injustice cannot be remedied by an order of that Court.
In any event, the applicant did serve the official receiver on 18 June 2002 with a statement of affairs which was dated 23 June 1999, it being a copy of her original statement.
In Nilant & Macchia (2000) FCA 1528, the Full Court of the Federal Court of Australia (Hill, Carr and Weinberg JJ) dealt with the question of whether Section 306(1) of the Act could be construed so as to permit the Court to treat a defect or irregularity of a statement of affairs as capable of being remedied. The majority in that case held that
(1)A Statement of Affairs is a “proceeding under this Act” within the meaning of that expression in Section 306(1) of the Act;
(2)The proceeding must be one which, but for Section 306(1) would be invalidated by reason of the formal defect or irregularity;
(3)The proceeding, albeit itself not curial must be such as to be capable of coming before the Court on an objection concerning that invalidity.
Weinberg J. cited with approval Sofia v Pattison where the bankrupt had left a photocopy of a Statement of Affairs, and not the original, as section 54(1) implicitly requires at the counter of the Office of the Registrar of Bankruptcy;
Tsingaris v Official Receiver for the Bankruptcy District of the State of Victoria (1999) FCA 1389 where the Bankrupt filed a photocopy of his Statement of Affairs with his Trustee, the Official Trustee, and not with the Registrar in Bankruptcy as Section 54(1) of the Act then required;
Official Trustee in Bankruptcy v Street (2000) FCA 216 where Sackville J held that section 306(1) of the Act could be invoked in circumstances where there had been an attempt on the part of the Bankrupt to comply with the obligations under section 54(1) of the Act. One of the several respondents in that case had provided two original Statements of Affairs to the Office of the Official Trustee. The respondent had not, however, filed those Statements of Affairs with the Registrar of Bankruptcy as was required at the time by section 54(1). Sackville J held that in the result the “proceedings” had not been invalidated by the irregularity associated with those documents having been filed with the official receiver rather than with the Registrar in bankruptcy.
Weinberg J said, at paragraph 64:
“Where there has been an attempt to comply with Section 54(1) whether within the 14 day period specified, or on some occasion thereafter, it is entirely apt to speak of that attempt as being “proceeding under this Act” and has being capable of being regarded by the Court as “ not invalidated” by reason of any formal defect or error”
The effect of invoking section 306(1) in such a case is to permit the period of Bankruptcy to run from the date of purported compliance with the Act, or perhaps some later date. It follows that the Bankruptcy will not continue for an unconsciously long period merely because of some minor failure on the part of the Bankrupt to comply with the strict requirement of section 54(1).
In this case the Applicant posted a copy of the Statement of Affairs to the official receiver but it either did not arrive or was mislaid. Subsequently, in June 2002 a further copy of the original statement dated 23 June 1999 was served upon the official receiver. I am satisfied that there has been an attempt to comply with the obligations of section 54(1) as described in Nilant & Macchia. Accordingly, I propose to make a declaration in favour of the Applicant that the Statement of Affairs signed by the Applicant on 23 June 1999 be deemed to have been filed with the official receiver on 24 June 1999 in compliance with the requirements of section 54(1) of the Bankruptcy Act 1966 (Cth).
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate:
Date: