Official Receiver in Bankruptcy v Ajepoor

[2016] FCCA 1641

FEDERAL CIRCUIT COURT OF AUSTRALIA

OFFICIAL RECEIVER IN BANKRUPTCY v AJEPOOR & ANOR [2016] FCCA 1641

Catchwords:
BANKRUPTCY – Annulment of bankruptcy under s.153B of the Bankruptcy Act 1966 (Cth).

Legislation:

Bankruptcy Act 1966 (Cth), ss.153B, 303

Federal Circuit Court (Bankruptcy) Rules 2016

Applicant: OFFICIAL RECEIVER IN BANKRUPTCY

First Respondent: EMIL AJEPOOR

Second Respondent: PERMANENT CUSTODIANS LTD

File Number: SYG 1285 of 2016

Judgment of: Judge Dowdy

Hearing date: 1 July 2016

Delivered at: Sydney

Delivered on: 1 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Abood.

Solicitors for the Applicant: Australian Government Solicitor.

The Respondent appeared in person on behalf of the First and Second Respondents.

ORDERS

The Court orders as follows:

1. Order pursuant to section 153B of the Bankruptcy Act 1966 (Cth) that the bankruptcy of Mr Emil Ajepoor, the first respondent herein, resulting from the sequestration order made by the Federal Magistrates Court on 19 March 2009 be and is hereby annulled.

2. I direct that the entry on the National Personal Insolvency Index against the name of Emil Ajepoor, the first respondent herein, referable to and consequent upon the said sequestration order of 19 March 2009 for which Permanent Custodians Limited was petitioning creditor be caused to be removed by the Official Receiver from the National Personal Insolvency Index. 

3. I direct that the Official Receiver give notice of the within orders to Permanent Custodians Limited and the first respondent within seven days of today.

4. I dispense with any further compliance by the applicant with the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) relating to annulment under section 153B of the Bankruptcy Act 1966 (Cth).

5. I make no order as to costs to the intent that any party pay and bear his and its own costs of the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1285 of 2016

OFFICIAL RECEIVER IN BANKRUPTCY

Applicant

And

EMIL AJEPOOR

First Respondent

PERMANENT CUSTODIANS LTD

Second Respondent

REASONS FOR JUDGMENT

1. There is before the Court an application by the Official Receiver filed on 24 May 2016 whereby an order is sought under section 153B of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) seeking the annulment by the Court of the bankruptcy of the first respondent, Mr Emil Ajepoor, by reason of the sequestration order of the Federal Magistrates Court made on 19 March 2009 as a result of a creditor’s petition presented by Permanent Custodians Limited.

2. Mr Ajepoor is first respondent.  He appeared in person today before me and joins in and supports the annulment application made by the Official Receiver.

3. Permanent Custodians Limited is named as second respondent.  I am satisfied that the second respondent has been served with the application before me and the supporting affidavit of Ms Daphne Dominique affirmed on 16 May 2016.  I am further satisfied that Permanent Custodians Limited does not oppose the annulment.

4. I note that I am satisfied under section 303 of the Bankruptcy Act that the Official Receiver has standing to bring the application as a person interested and Mr Ajepoor can join in and support the application as a person aggrieved, having regard to the factual circumstances appearing below and which are summarised by me from the affidavit of Ms Dominique.

5. Mr Ajepoor was made bankrupt effective from 17 March 2009 on his own Debtor’s Petition.  In his statement of assets filed with his Debtor’s Petition he named Permanent Custodians Limited as a secured creditor for the sum of $389,362.84.  Mr Ian Struthers was appointed as his trustee in bankruptcy.

6. Mr Ajepoor was ultimately discharged from this bankruptcy on 18 March 2012.

7. Unfortunately, at the time the Debtor’s Petition was accepted by a delegate of the Official Receiver, his first name was recorded in the National Personal Insolvency Index as “Emir”, rather that by his correct name of “Emil”.

8. Two days later, on 19 March 2009 a sequestration order was made as a result of a creditor’s petition presented to the Federal Magistrates Court.  The Official Trustee was appointed to be trustee of Mr Ajepoor’s estate but no administration ever occurred under the sequestration order.

9. I am satisfied that in truth and in fact the sequestration order of 19 March 2009 should never have been made because Mr Ajepoor was already a bankrupt on his own petition some two days earlier, being 17 March 2009.  The sequestration order was presumably made because in the Federal Magistrates Court proceeding a search of the National Personal Insolvency Index would not have shown that “Emil Ajepoor” was already bankrupt, but rather would have shown that one “Emir Ajepoor” was bankrupt.

10. The sequestration order of 19 March 2009 should not have been made because Permanent Custodians Limited could have proved in the first bankruptcy for its balance debt after realisation of its security.  In other words, it is clear from Mr Ajepoor’s said statement of assets and the close proximity of time between the Debtor’s Petition and the sequestration order that Permanent Custodian Limited’s debt was not for a new debt contracted after the first bankruptcy, but for a debt made before the Debtor’s Petition was presented and being a debt for which Permanent Custodians’ could have proved in the first bankruptcy. 

11. In other words, the second bankruptcy only arose because of the mistake of the entering of the wrong first name of Mr Ajepoor in the National Personal Insolvency Index and the sequestration order of 19 March 2009 ought never to have been made.

12. Accordingly, I consider that the bankruptcy resulting from the sequestration order of 19 March 2009 should be annulled.

13. Further, as both bankruptcies finished in March 2012, I see no point or purpose in notice being given to either Mr Struthers or the creditors of Mr Ajepoor.

14. For the preceding reasons I made the above orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 1 July 2016