Official Receiver in Bankruptcy v Lo Pilato
[2011] FMCA 664
•9 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OFFICIAL RECEIVER IN BANKRUPTCY v LO PILATO & ANOR | [2011] FMCA 664 |
| BANKRUPTCY – Application for annulment of bankruptcy where debtor’s petition ought not to have been accepted – where debtor’s petitions accepted in different offices of the Official Receiver in Bankruptcy. |
| Bankruptcy Act 1966 (Cth), s.153B |
| Applicant: | OFFICIAL RECEIVER IN BANKRUPTCY |
| First Respondent: | FRANK LO PILATO |
| Second Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| File Number: | SYG 1490 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Sally Nash & Co |
| First Respondent: | No appearance |
| Second Respondent: | Submitting appearance |
ORDERS
The bankruptcy created by the debtor's petition in relation to Gregory James Whittle accepted by the Official Receiver in New South Wales (known as Administration Number NSW5443/8/7) on 14 July 2008 be annulled on the basis that the petition ought not to have been accepted by the Official Receiver.
The court dispenses with compliance with Parts 7.03 and 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The applicant pay its own costs of this application.
The applicant remove the entry of the debtor's petition referred to in Order 1 from the National Personal Insolvency Index.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1490 of 2011
| OFFICIAL RECEIVER IN BANKRUPTCY |
Applicant
And
| FRANK LO PILATO |
First Respondent
| OFFICIAL TRUSTEE IN BANKRUPTCY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 14 July 2011 by the Official Receiver in Bankruptcy seeking that a debtor’s petition for Gregory James Whittle accepted in the Sydney office of the Official Receiver on 14 July 2008 be annulled under s.153B of the Bankruptcy Act 1966 (Cth) (the Act).
The first respondent, Mr Lo Pilato, consented to act as trustee in relation to this debtor’s petition. He also consented to act as trustee in relation to a debtor’s petition in relation to the same debtor (Gregory James Whittle) that was accepted in the Canberra office of the Official Receiver on the same day, 14 July 2008. I am satisfied on the basis of the affidavit of service of Melanie Cavanough sworn on 9 August 2011 and filed in these proceedings, that Mr Lo Pilato is on notice of these proceedings. He is not present today and has not filed a notice of appearance.
The second respondent is the Official Trustee in Bankruptcy who entered a submitting appearance save as to costs.
In support of the application the Official Receiver relies on an affidavit sworn on 30 June 2011 by Elisabeth Noble, business manager of the Insolvency Trustee Service of Australia. Her evidence is that on the same day (14 July 2008) two debtor’s petitions were accepted by the Official Receiver in relation to Gregory James Whittle. Copies of extracts from the National Personal Insolvency Index show that such debtor’s petitions were filed and entered on the same day and each of those named Mr Lo Pilato as trustee. Ms Noble’s evidence and a file note from the Insolvency and Trustee Service in relation to these two debtor’s petitions suggests that a debtor’s petition was both received by post and registered on 14 July 2008 in the Canberra office. Data entry in relation to this debtor’s petition was completed on 15 July 2008 and letters to creditors sent on 16 July 2008. Data entry in relation to the debtor’s petition received in the Sydney office on 11 July 2008 by facsimile and “registered” on 14 July 2008 was not completed until 22 July 2008 and initial letters were sent to creditors on 23 July 2008.
There is no evidence before the court as to why two debtor’s petitions were filed by the same person. The name is the same and the date of birth is the same. There is a minor difference in the address in that one says “Lot 2” and the other says “2”. In one National Personal Insolvency Index entry the occupation of the bankrupt is described as “roof tiler” and in the other as a “contractor”. However these entries relate to the same person.
The evidence is that administration of the bankruptcy has proceeded substantially in Canberra. In these circumstances the applicant seeks that the debtor’s petition accepted in Sydney be annulled on the basis that the Official Receiver should not have accepted it whilst there was another debtor’s petition accepted on the same day in Canberra, albeit it was attested by Ms Noble that the “Applicant could not have known of the lodgement in Canberra when proceeding [with the acceptance of] the Debtors’ Petition in Sydney”. In submissions it was however accepted that the Official Receiver should not have accepted two debtor’s petitions on the same day in two registries.
The bankruptcy remains on foot. It is however appropriate to annul one of the debtor’s petitions so that there are not two records of debtor’s petitions in relation to the same person.
In these circumstances the Official Receiver asks that the court exercise its discretion to annul a bankruptcy under s.153B of the Act on the basis that the debtor’s petition that was accepted in the Sydney registry should not have been accepted in circumstances where the debtor’s petition filed in Canberra had been accepted on that day.
The bankruptcy administration has been substantially carried out in relation to the debtor’s petition that was accepted in Canberra. It is appropriate to dispense with compliance with Parts 7.03 and 7.04 of the Federal Magistrates Court (Bankruptcy) Rules (2006) (Cth).
On the evidence that is now before the court. I am satisfied that the debtor’s petition that was filed in the Sydney office of the Official Receiver in Bankruptcy ought not to have been accepted by the Official Receiver in circumstances where a debtor’s petition in relation to the same person had been filed and accepted in Canberra. It is appropriate, in the exercise of the court’s discretion, to annul the debtor’s petition that was accepted in Sydney under s.153B of the Act.
The applicant is not seeking costs. It was submitted, quite properly, that the bankrupt ought not to be put to the expense of making the application to have one of the bankruptcies annulled. It was also submitted that as the Official Receiver did not have an “overall” discretion to rectify the National Personal Insolvency Index record in circumstances where two debtor’s petitions had been accepted, as in this case, there should be a direction that the National Personal Insolvency Index be rectified. It is appropriate to make such an order.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 31 August 2011
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