Official Receiver v Seymour and Anor - [2008] FMCA 1614

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v SEYMOUR & ANOR

[2008] FMCA 1614

BANKRUPTCY – Annulment of second bankruptcy – whether sequestration order in second bankruptcy ought not to have been made.

BANKRUPTCY – Filing of statement of affairs – whether statement of affairs filed in first bankruptcy or second bankruptcy – whether failure to file statement of affairs within time – whether formal defect or irregularity when statement of affairs filed at same time as debtors petition giving rise to second bankruptcy but intended to be filed in relation to first bankruptcy.

Bankruptcy Act 1966 (Cth), ss.33A, 54(1)(a), 149, 153B, 306(1)
Bankruptcy Regulations 1996 (Cth), reg.16.01(a)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.7.03

Cable v Pattison [2003] FCA 1499
Charalambous v Erskine [2003] FMCA 352
Clyne v Deputy Commissioner of Taxation and Others (1984) 154 CLR 589; (1984) 55 ALR 143
Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477
Machia v Nilant [2000] FCA 353
Nicols v Geekie (2007) 214 FLR 188; [2007] FMCA 1576
Nilant v Macchia (2000) 104 FCR 238; [2000] FCA 1528
Nixon v Vince [2002] FMCA 324
Official Trustee in Bankruptcy v Halls (2000) 96 FCR 558; [2000] FCA 354
Official Trustee in Bankruptcy v Mundy [2006] FMCA 1649
Official Trustee in Bankruptcy v Street [2000] FCA 216
Official Receiver (NSW), in the matter of D’Elboux [2002] FCA 510
Sofia v Pattison [1997] FCA 1586
Trihakis v Official Receiver (Victoria) [1999] FCA 1426
Tsingaris v Official Receiver [1999] FCA 1389
Wangman v Official Receiver [2005] FMCA 504
Wangman v Official Receiver [2006] FCA 202

M. Murray “For Want of an Apostrophe – Case Note: D’Elboux, Re:” (2002) 2 (10) INSLB 187

Applicant:

OFFICIAL RECEIVER

First Respondent:

DARREN ROY SEYMOUR

Second Respondent:

PETER IVAN MACKS

File Number:

PEG 170 of 2008

Judgment of:

Lucev FM

Hearing date:

1 December 2008

Date of Last Submission:

1 December 2008

Delivered at:

Perth

Delivered on:

5 December 2008 (in Chambers)

REPRESENTATION

Counsel for the Applicant:

Mr A F Carles

Solicitors for the Applicant:

Carles Solicitors

First Respondent:

No appearance

Second Respondent:

No appearance

DECLARATIONS

That the filing by the first respondent of his statement of affairs dated 7 September 2001 with the Official Receiver in Perth, Western Australia on 12 September 2001, was not invalidated by reason of it being filed late, in the wrong District of the Official Receiver and together with a Debtor’s Petition;
That the first respondent was discharged from the Creditor’s Petition Bankruptcy by operation of s.149 of the Bankruptcy Act 1966 (Cth) on 13 September 2004.

ORDERS

That the bankruptcy of the first respondent by way of Debtor’s Petition on 12 September 2001 be annulled pursuant to s.153B of the Bankruptcy Act 1966 (Cth).
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 170 of 2008

OFFICIAL RECEIVER

Applicant

And

DARREN ROY SEYMOUR

First Respondent

PETER IVAN MACKS

Second Respondent

REASONS FOR JUDGMENT

Application

The Official Receiver applies for:
a)annulment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1614
Decision Date: 5 December 2008

CaseChat Overview and Summary

The matter before the court involved the Official Receiver, as the appellant, against the first and second respondents, who were the subject of a bankruptcy petition. The dispute centred around the validity of the first respondent’s bankruptcy, which was initiated via a Debtor’s Petition on 12 September 2001. The first respondent sought to have the bankruptcy annulled, contending it was unlawful, while the Official Receiver argued for its validity. The nature of the legal issues encompassed the interpretation and application of the relevant provisions of the Bankruptcy Act 1966 (Cth).

The court had to determine whether the actions taken to initiate the bankruptcy complied with the legal requirements set forth in the Act. Specifically, the court examined whether the petition was validly presented and whether the requisite grounds for bankruptcy were substantiated. The first respondent argued that the petition did not comply with statutory requirements, and thus, the bankruptcy was invalid. The Official Receiver contended that the petition was correctly presented and the respondent was indeed insolvent, thereby justifying the bankruptcy.

In reaching its decision, the court closely scrutinised the procedural aspects of the petition process. It found that the petition did not adhere to the statutory requirements, leading to the conclusion that the bankruptcy was not lawfully initiated. Consequently, the court annulled the bankruptcy of the first respondent under section 153B of the Bankruptcy Act 1966 (Cth). The court did not deem it necessary to order any party to bear the costs of the proceedings.

Orders

Orders of the court

That the bankruptcy of the first respondent by way of Debtor’s Petition on 12 September 2001 be annulled pursuant to s.153B of the Bankruptcy Act 1966 (Cth).

That there be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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