Official Receiver (NSW), in the matter of D’Elboux
[2002] FCA 510
•23 APRIL 2002
FEDERAL COURT OF AUSTRALIA
Official Receiver (NSW), in the matter of D’Elboux [2002] FCA 510
THE OFFICIAL RECEIVER FOR THE BANKRUPTCY DISTRICT OF NEW SOUTH WALES, IN THE MATTER OF LESLIE JOHN D’ELBOUX
N 7088 OF 2002HILL J
23 APRIL 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7088 OF 2002
THE OFFICIAL RECIEVER FOR THE BANKRUPTCY DISTRICT OF NEW SOUTH WALES
APPLICANTIN THE MATTER OF LESLIE JOHN D’ELBOUX (AKA LESLIE JOHN D’ELBOUX AND L D’ELBOUX)
JUDGE:
HILL J
DATE OF ORDER:
23 APRIL 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the Debtors Petition presented by Leslie John D'Elboux (the Bankrupt) and accepted by the Official Receiver being Bankruptcy No. NSW 1301/01/4 be annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth) on the grounds that the petition presented by the Bankrupt should not have been presented because he had already been declared bankrupt in Victoria and allocated the Bankruptcy No. VIC 3065/99/5.
2.the requirements in Order 77 Rules 42 to 45 of the Federal Court Rules be dispensed with save that a copy of this order be entered in the Registry within 24 hours of their making and notice of the making of the orders be given to the Trustee in the Bankruptcy No. VIC 3065/99/5 and the Bankrupt within 7 days of the making of the orders.
3.the orders, other than notice to the Bankrupt, are stayed for a period of 14 days to permit the Bankrupt who did not appear in these proceedings to apply to the court should he be so advised.
4.the date of this order shall be taken to be the date 14 days from today's date.
5.the costs of the Official Receiver shall be the costs in the initial bankruptcy.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7088 OF 2002
THE OFFICIAL RECIEVER FOR THE BANKRUPTCY DISTRICT OF NEW SOUTH WALES
APPLICANTIN THE MATTER OF LESLIE JOHN D’ELBOUX (AKA LESLIE JOHN D’ELBOUX AND L D’ELBOUX)
JUDGE:
HILL J
DATE:
23 APRIL 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the court is an application made by the Official Receiver pursuant to s 153B of the Bankruptcy Act 1966 (Cth) ("the Act") for the annulment of the bankruptcy arising from the presentation by Mr Leslie John D'Elboux ("the Bankrupt") of a bankruptcy petition on 21 March 2000.
The application is made on ground that the debtor’s petition ought not to have been presented. The circumstances which led to the application are somewhat unusual. On 3 August 1999 a sequestration order was made against the estate of the bankrupt on the grounds of failure to comply with the bankruptcy notice. On 24 September the Bankrupt filed a statement of affairs in which he showed he had no unsecured creditors as at that date and a secured creditor to whom the sum of $17,307.70 was owed. That secured creditor was the petitioning creditor in the bankruptcy petition.
On 21 March 2000 the Bankrupt presented his own petition pursuant to s 55 of the Act. In the petition he wrote his surname as “Delboux” omitting the apostrophe after the letter D. That mistake led to the ordinary search which is undertaken not revealing that shortly before the filing of the petition the Bankrupt had been made bankrupt on a creditors petition. The statement of affairs which accompanied the debtor’s petition again showed no unsecured creditors and the only secured creditors being the petitioning creditor in the same amount as had been shown in the statement of affairs filed in the bankruptcy.
It took apparently some time for the fact of two bankruptcies to become known, indeed, it seems only to have come to light in January of this year. On 11 January the Official Receiver advised the Bankrupt of the erroneous acceptance of the petition and he was advised that an application would be made to the court to have the bankruptcy arising from the acceptance of his own petition being annulled.
The present is in one sense not a circumstance that appears to have been thought about in the drafting of s 153B and s 55 of the Act. As I have noted the relevant ground for an annulment under s 153B is that the petition ought not to have been presented. The alternative ground, that it ought not to have been accepted, will be difficult to make out having regard to the statutory regime dealing with the acceptance of petitions contained in s 55 of the Act.
The provisions of ss 55(3)(a) and 55(3)(b) of the Act resulted from the litigation between Mr Clyne and the Deputy Commissioner of Taxation: Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589. In that litigation Mr Clyne presented his own petition but in circumstances where the presentation of his petition substantially shortened the relation back period. There was at the time outstanding a creditors petition filed by the Commissioner of Taxation.
An Order was made by this court in Re Clyne; Ex parte Deputy Commissioner of Taxation (1983) 50 ALR 137 (Beaumont J) that Mr Clyne be made bankrupt on the Commissioner's petition thus raising the issue whether it was possible to have two bankruptcies. That matter went to the High Court which held that it was not and that the sequestration order made on the creditor’s petition ought not to have been made and was not validly made. Subsequently, and at the suggestion of the High Court, an application was made annulling the bankruptcy of Mr Clyne arising from the presentation of his own petition and an annulment was ultimately granted.
The case is important because it demonstrates that, other than a case where two bankruptcies arise and involve different debts, a second bankruptcy cannot arise. In other words, once a sequestration order has been made against a bankrupt, a debtor should not present a petition against himself relating to the same debts as are the subject of the bankruptcy. There is nothing to prevent a debtor lodging a petition in respect of fresh debts which have arisen since the time the original bankruptcy took place.
The evidence before me in the form of the two statements of affairs makes it clear that no fresh debt had arisen between the making of the sequestration order and the presentation by the Bankrupt of his own petition. In these circumstances in my view the case is one which it can be said that the debtors petition ought not to have been presented. The decision of Drummond J in Re Coyle (1993) 42 FCR 72 discusses the general difficulty to be found in s 153B. His Honour refers, inter alia, to a decision in Re Goo Tuck; Ex parte Goo Tuck (1892) 2 BC (NSW) 95 where annulments of a bankruptcy was ordered where a bankrupt had presented his own petition but in circumstances where he was unaware that infancy was an answer to the claims of all his creditors. In other words, at the time the Bankrupt presented his petition he had no creditors. It was held that in these circumstances the ensuing bankruptcy should be annulled. That is of course analogous to the present circumstances but the present case is if anything stronger having regard to the policy of the Act as discussed by the High Court in its judgment in Clyne. In these circumstances I would order that the debtors petition presented by Leslie John D'Elboux (the Bankrupt) and accepted by the Official Receiver being bankruptcy number NSW 1301/01/4 be annulled pursuant to s 153B of the Act on the grounds that the petition presented by the Bankrupt should not have been presented because he had already been declared bankrupt in Victoria and allocated the bankruptcy number VIC 3065/99/5.
I would order that the requirements in Order 77 Rules 42 to 45 of the Federal Court Rules be dispensed with save that a copy of this order be entered in the registry within 24 hours of the making of it and notice of the making of the order be given to the trustee in the bankruptcy number VIC 3065/99/5 and the Bankrupt within 7 days of the making of this order.
I would stay the orders other than the order requiring notice to be given to the Bankrupt for a period of 14 days to permit the Bankrupt who did not appear in these proceedings to apply to the court should he be so advised. I also declare that the date of this order shall be taken to be the date 14 days from today's date.
I order that costs of the Official Receiver shall be the costs in the initial bankruptcy.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate:
Dated: 13 May 2002
Counsel for the Applicant: A Seward Solicitor for the Applicant: Kemp Strang Counsel for the Respondent: No appearance Date of Hearing: 23 April 2002 Date of Judgment: 23 April 2002
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