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

1. 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;

2. 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

1. 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).

2. 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

1. The Official Receiver applies for:

   a)annulment of a debtor’s petition bankruptcy for the first respondent, Mr Seymour; and

   b)orders enabling Mr Seymour to obtain a discharge from an earlier sequestration order bankruptcy.

Affidavit evidence

1. The application is supported by an affidavit of Kevin Arthur Fraser sworn 5 November 2008[1] and affidavits of Kristina Balik sworn 27 November 2008[2] and Blake Primrose sworn 27 November 2008[3] as to service and notice to creditors.

   [1] “Fraser’s Affidavit”.

   [2] “Balik’s Affidavit”.

   [3] “Primrose’s Affidavit”.

Facts

1. The relevant facts are as follows:

   a)on a creditor’s petition a sequestration order was made against the estate of Mr Seymour on 28 May 2001 in South Australia, with the second respondent being appointed as trustee of the bankrupt estate;[4]

   b)Mr Seymour became bankrupt for a second time on 12 September 2001 when he presented his own debtor’s petition in bankruptcy to the Official Receiver in Perth;[5]

   c)the Official Receiver’s office in Perth did not detect that Mr Seymour was already bankrupt when accepting his debtor’s petition;

   d)Mr Seymour’s financial position remained unchanged between the making of the sequestration order and the presentation of the debtor’s petition;[6]

   e)Mr Seymour did not file a statement of affairs within the 14 days prescribed by s.54(1) of the Bankruptcy Act 1966 (Cth);[7]

   f)Mr Seymour thought, when handing in a statement of affairs with his debtor’s petition on 12 September 2001 that he “was replying to the sequestration order…and not applying for bankruptcy himself”;[8]

   g)the only asset realised by the Official Trustee in the administration of the debtor’s petition bankruptcy was $1,400 from a bank account;[9] and

   h)the debts disclosed in Mr Seymour’s statement of affairs included a debt of $11,965.05 to a petitioning creditor in the creditor’s petition bankruptcy, and four other small debts totalling $3,280.20.[10]

   [4] Fraser’s Affidavit, para.3.

   [5] Fraser’s Affidavit, para.2.

   [6] Fraser’s Affidavit, para.15.

   [7] Fraser’s Affidavit, para.7; “Bankruptcy Act”.

   [8] Fraser’s Affidavit, para.9, annexure “F”, being a letter of 22 July 2008 from Mr Seymour in response to a letter from the Official Trustee of 10 July 2008; and see also annexure “J” attaching a statutory declaration by Mr Seymour in which he confirms (at para.2) that the contents of his letter of 22 July 2008 are entirely true and correct.

   [9] Fraser’s Affidavit, para.12.

   [10] Fraser’s Affidavit, para.13.

2. In relation to this application:

   a)the relevant notice to creditors has been given with service effected by post to the creditors’ last known addresses;[11]

   b)copies of the application and Fraser’s Affidavit have been served on the trustee in bankruptcy in the first bankruptcy, the second respondent,[12] who consents to the orders sought;[13] and

   c)copies of the application and Fraser’s Affidavit have been served on Mr Seymour.[14]

   [11] Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.7.03; Bankruptcy Regulations 1996 (Cth), reg.16.01(a); Balik’s Affidavit, paras.2-4.

   [12] Balik’s Affidavit, paras.5-6.

   [13] Balik’s Affidavit, para.6, annexure “F”, being an Acknowledgment of Service and Consent to Orders Sought dated 25 November 2008 from the second respondent.

   [14] Primrose’s Affidavit, paras.1-4.

Annulment – consideration

1. Section 153B of the Bankruptcy Act provides:

   If the Court is satisfied that a sequestration order ought not to have been made, or in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.

2. The Applicant must show in these proceedings that the debtor’s petition ought not to have been presented or ought not to have been accepted by the Official Receiver.

3. In Clyne v Deputy Commissioner of Taxation and Others,[15] the High Court held that a sequestration order be set aside as being beyond power. In that case the debtor had filed a debtor's petition (and become bankrupt) prior to the hearing of a creditor's petition. The High Court unanimously held that while the statutory bankruptcy continued, the Federal Court lacked the power to make a sequestration order against the estate of a debtor (where the creditor's petition was founded on a debt incurred before the presentation of the debtor's petition) without first annulling the bankruptcy resulting from the debtor's petition. The High Court having reviewed the cases said:

   Those cases suggest no persuasive reason for holding that a person who is already bankrupt may be made bankrupt again on a petition founded on a debt provable in the existing bankruptcy.[16]

   [15] (1984) 154 CLR 589; (1984) 55 ALR 143 (“Clyne”).

   [16] Clyne, CLR at 596, ALR at 149-150.

4. In Official Receiver (NSW), in the matter of D'Elboux,[17] Hill J referred to Clyne and stated that:

   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.

   [17] [2002] FCA 510 (“D’Elboux”).

5. In D’Elboux a sequestration order was made against the debtor on

   
   3 August 1999

   with a debtor’s petition subsequently being presented by the bankrupt on 21 March 2000. The Official Receiver did not detect that the debtor was already bankrupt when accepting the debtor’s petition.[19] The fact of the two bankruptcies only became known at a later date. The Federal Court found that no fresh debt had arisen between making the sequestration order and presentation of the bankrupt’s own petition. The Federal Court found that when the bankrupt presented his own petition he had no creditors. The Federal Court annulled the debtor’s petition bankruptcy under s.153B of the Bankruptcy Act on the grounds that the petition presented by the bankrupt should not have been presented because he had already been declared bankrupt.[20]

   [19] Because, when the search was done the apostrophe in the bankrupt’s name (D’Elboux) was omitted because Mr D’Elboux has written his name as “Delboux” in the debtor’s petition: see D’Elboux at para.3 per Hill J.  See also M. Murray “For Want of an Apostrophe – Case Note: D’Elboux, Re:” (2002) 2 (10) INSLB 187.

   [20] D’Elboux at paras.2-5 and 9 per Hill J.

6. In Official Trustee In Bankruptcy v Mundy[21] this Court found that a bankrupt had been made bankrupt twice, and that on the second occasion it was in error, an error due to the relevant search failing to reveal the prior bankruptcy.[22] In Mundy there was no fresh debt between the dates of the two bankruptcies.[23] The Court said in Mundy that:

   …it is self evident that had the Court been aware that the Respondent had already become bankrupt by the first sequestration order that the second sequestration order would not and could not have been made.[24]

   [21] [2006] FMCA 1649 (“Mundy”).

   [22] Mundy at paras.15 and 18 per Lucev FM.

   [23] Mundy at para.17 per Lucev FM.

   [24] Mundy at para.19 per Lucev FM.

7. The present circumstances are a little different to those in D’Elboux and Mundy in that the second bankruptcy would not and could not have been made had there been an awareness of the first bankruptcy. Accordingly, an order will be made that the second bankruptcy of Mr Seymour (that is the one based on his own debtor’s petition) will be annulled under s.153B of the Bankruptcy Act as a bankruptcy that ought not to have been made, because the debtor’s petition ought not to have been accepted by the Official Receiver.

Statement of affairs – consideration

1. One factual difference between D’Elboux and the present case is that in D’Elboux the bankrupt filed two statements of affairs, one in each bankruptcy,[25] whilst in this case only one statement of affairs has been filed by Mr Seymour.

   [25] D’Elboux at paras.2, 3 and 9 per Hill J.

2. In submissions the applicant contends that:

   a)Mr Seymour has only filed a statement of affairs in the second, debtor’s petition, bankruptcy and has not filed a statement of affairs in the first, creditor’s petition, bankruptcy.[26]

   b)if the second bankruptcy is annulled with no further orders then Mr Seymour’s position with respect to a discharge from bankruptcy will be as follows:

   i)Mr Seymour’s only statement of affairs filed will be that filed in the Office of the Official Receiver in Perth in connection with the second bankruptcy;

   ii)Mr Seymour will not have fulfilled the obligation under ss.54(1)(a) and 149 of the Bankruptcy Act to file a statement of affairs in the Office of the Official Receiver in Adelaide in relation to the first bankruptcy;

   iii)under s.149 of the Bankruptcy Act a bankrupt is discharged from bankruptcy at the end of the period of three years from the date on which the statement of affairs is filed;

   iv)application of s.149 of the Bankruptcy Act in this case would mean that Mr Seymour would now have to file a statement of affairs with the Official Receiver in Adelaide, and then be discharged in three years time; and

   v)a discharge in three years time would mean that Mr Seymour would not be discharged until 2011, by which time he would have been bankrupt for ten years, notwithstanding that in 2001 he did provide a statement of affairs in relation to the second bankruptcy.[27]

   [26] Applicant’s Outline of Submissions, para.5.

   [27] Applicant’s Outline of Submissions, para.6.

3. The orders sought by the applicant in this case would have the effect that Mr Seymour would be taken to have filed his statement of affairs on 12 September 2001 as that is when he filed his statement of affairs with the Official Receiver in Perth, and be taken to have been discharged from bankruptcy three years later on 13 September 2004.

4. In the Court’s view the applicant’s submission that Mr Seymour filed his statement of affairs in relation to the second, debtor’s petition, bankruptcy, is factually inaccurate. Although Mr Seymour filed the statement of affairs at the same time as the debtor’s petition, he did not intend to apply to be made bankrupt, but rather that the statement of affairs be part of a “reply[ing] to the sequestration order.”[28] It is apparent therefore, and the Court finds that, the statement of affairs was filed in relation to the first, creditor’s petition, bankruptcy and not the second, debtor’s petition, bankruptcy. The statement of affairs was:

   a)filed late, outside of the 14 day time limit prescribed in s.54(1) of the Bankruptcy Act;

   b)not filed with the Official Receiver of the District (South Australia) in which the sequestration order was made, contrary to s.54(1)(a) of the Bankruptcy Act; and

   c)filed together with a debtor’s petition.

   [28] See para.3(f) above

5. In Sofia & Anor v Pattison & Anor[29] the question was whether s.306(1) of the Bankruptcy Act can have application to a failure to comply with s.54(1) of the Bankruptcy Act.[30] The Federal Court held that a wide view should be taken of the word “proceeding” as defined in s.5(1) of the Bankruptcy Act when used in s.306(1) of the Bankruptcy Act in relation to the filing of a statement of affairs under s.54(1) of the Bankruptcy Act, so that defective or irregular filing of a statement of affairs could be validated under s.306(1) of the Bankruptcy Act.[31]

   [29] [1997] FCA 1586 (“Sofia”).

   [30] Sofia at page 4 per Finkelstein J.

   [31] Sofia at page 5 per Finkelstein J.

6. In Tsingaris v Official Receiver[32] the Federal Court followed its earlier judgment in Sofia and invoked s.306(1) of the Bankruptcy Act to validate an irregularity which arose from the failure to file a statement of affairs within the requisite time.[33]

   [32] [1999] FCA 1389 (“Tsingaris”).

   [33] Tsingaris at paras.14-16 per Weinberg J.

7. In Trihakis v Official Receiver (Victoria)[34] the question arose as to whether a statement of affairs had been filed with the Registrar in Bankruptcy in circumstances where a husband had sent his and his wife’s statement of affairs by post to the Registrar in Bankruptcy, but only the former had been received by the Registrar in Bankruptcy. Consequently, no original statement of affairs had ever been filed by Ms Trihakis with the Registrar in Bankruptcy. Based on evidence that both Mr Trihakis and Ms Trihakis’ statement of affairs had been posted on or about the same time the Federal Court made a declaration that Ms Trihakis had complied with s.54(1) of the Bankruptcy Act by filing her statement of affairs with the Registrar in Bankruptcy. Section 306(1) of the Bankruptcy Act was applied to cure the irregularity, the Federal Court finding that no injustice would result.[35]

   [34] [1999] FCA 1426 (“Trihakis”).

   [35] Trihakis at paras.13-15 per Kenny J.

8. In a number of other cases the Federal Court has relied upon s.306(1) to cure defects or irregularities in relation to the filing of statements of affairs and compliance with s.54(1) of the Bankruptcy Act.[36]

   [36] See, for example, Official Trustee in Bankruptcy v Street [2000] FCA 216; Official Trustee in Bankruptcy v Halls (2000) 96 FCR 558; [2000] FCA 354; Cable v Pattison [2003] FCA 1499 (“Cable”).

9. In Nilant v Macchia[37] the Full Court of the Federal Court of Australia dealt with an appeal in circumstances where the bankrupt had presented a debtor’s petition together with a statement of affairs to the Registrar in Bankruptcy in 1991. However, the bankrupt was subsequently bankrupted on a then pending creditor’s petition. No further statement of affairs was filed by the bankrupt until 1994. The bankrupt then sought a declaration that the statement of affairs filed by him in 1991 (on the debtor’s petition) be deemed to be a statement of affairs filed in relation to the sequestration order giving rise to the bankruptcy based on the creditor’s petition. At first instance, in the Federal Court the bankrupt succeeded, the primary judge holding that by operation of s.306(1) of the Bankruptcy Act the statement of affairs was deemed to have been made out and filed in 1991.[38]

   [37] (2000) 104 FCR 238; [2000] FCA 1528 (“Macchia”).

   [38] Macchia v Nilant [2000] FCA 353.

10. In allowing an appeal by the trustee in Macchia the Full Court of the Federal Court found that:

    a)the filing of a statement of affairs was a “proceeding” for the purposes of s.306(1) of the Bankruptcy Act;[39]

    b)section 306(1) of the Bankruptcy Act does not confer a power to treat a failure to comply with s.54 of the Bankruptcy Act as compliance with s.54 of the Bankruptcy Act;[40] and

    c)where there has been an attempt to comply with s.54(1) of the Bankruptcy Act by filing a statement of affairs in respect of which there is a formal defect or irregularity, s.306(1) of the Bankruptcy Act can be utilised to validate that formal defect or irregularity.[41]

    [39] Macchia FCR at 244 and 245 per Hill J.; FCA at paras.27 and 31 per Hill J; FCR at 246 per Carr J; FCA at para.36 per Carr J; FCR at 248, 249 and 251 per Weinberg J; FCA at paras.46, 51 and 64 per Weinberg J.

    [40] Macchia FCR at 244-245 per Hill J; FCA at paras.28-29 per Hill J; FCR at 250 and 251 per Weinberg J; FCA at paras.54 and 65 per Weinberg J.

    [41] Macchia FCR at 246 per Carr J; FCA at para.36 per Carr J; FCR at 251 per Weinberg J; FCA at para.64 per Weinberg J.

11. In Macchia Weinberg J went on to observe that:

    The effect of invoking s.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 unconscionably long period merely because of some relatively minor failure on the part of the bankrupt to comply with the strict requirements of

    
    

    s.54(1).[42]

    [42] Macchia FCR at 251 per Weinberg J; FCA at para.64 per Weinberg J.

12. In Cable there was an application for an extension of time for a statement of affairs to be filed late. The Federal Court held that no sufficient cause had been shown to extend time for filing of the statement of affairs, but that an extension of time was not necessary. The Federal Court said:

    It is not, however, necessary for the applicant to secure an extension of the time for filing of the Statement of Affairs from 10 March 1998 to 17 December 1999 in order for the applicant to obtain the relief claimed in the application. A Statement of Affairs may be filed within time or out of time. Late filing of a Statement of Affairs may attract a penalty, but the late filing is nonetheless a filing of a Statement of Affairs for the purposes of the Act. Here there was an attempt to file a Statement of Affairs with the second respondent on 17 December 1999 (albeit outside the 14 day period specified in s 54) which miscarried, because a copy of the signed Statement of Affairs was presented to the second respondent rather than the original.[43]

    [43] Cable at para.18 per Hely J.

1. In relation to the relief sought in Cable the Federal Court refused to make a declaration in the terms sought, namely, that the statement of affairs was deemed to have been filed in compliance with s.54 of the Bankruptcy Act, first, because the filing of the statement of affairs on that date was not in compliance with s.54 of the Bankruptcy Act because it was out of time, and secondly, because s.306 of the Bankruptcy Act validates a proceeding which might otherwise have been invalidated by a formal defect or irregularity, noting that it is not, in terms, a “deeming” provision, although that may be its effect.[44] In the circumstances the appropriate declarations were a declaration that the statement of affairs was not invalidated by reason of the fact that a copy only of the statement of affairs was then provided to the second respondent (the Official Receiver for Victoria), and a further declaration of discharge from bankruptcy under s.149 of the Bankruptcy Act on a date three years from the date that the statement of affairs was filed late.[45]

   [44] Cable at para.22 per Hely J.

   [45] Cable at para.22 per Hely J.

2. Validation of formal defects or irregularities in relation to statements of affairs by operation of s.306(1) of the Bankruptcy Act has also been the subject of judgments of this Court. In Nixon v Vince[46] this Court applied Machia in making a declaration that a statement of affairs signed by an applicant, and posted to the Official Receiver but apparently mislaid, had been filed in compliance with the requirements of s.54(1) of the Bankruptcy Act.[47]

   [46] [2002] FMCA 324 (“Nixon”).

   [47] Nixon at para.22 per Bryant CFM.

3. In Charalambous v Erskine[48] this Court made a declaration that the applicants had filed a statement of affairs on a particular date, and was satisfied that in the circumstances of that case it was appropriate to make a further order extending the time fixed by s.54(1) of the Bankruptcy Act for the filing of that statement of affairs.[49]

   [48] [2003] FMCA 352 (“Charalambous”)

   [49] Charalambous at para.22 per McInnis FM.

4. In Dumitrasku v Official Trustee in Bankruptcy[50] this Court granted relief under s.306(1) of the Bankruptcy Act where a statement of affairs provided by a bankrupt had four potential defects or irregularities: namely, a filing with the Official Trustee rather than the Official Receiver, the filing of a copy rather than an original, missing pages and an old form of statement of affairs.[51] The Court made orders that the filing of the defective statement of affairs be taken as sufficient compliance with s.54 of the Bankruptcy Act.[52]

   [50] [2003] FMCA 477 (“Dumitrasku”).

   [51] Dumitrasku at para.9 per Connolly FM.

   [52] Dumitrasku at paras.10-15 per Connolly FM.

5. Having regard to the facts already found by the Court in relation to this case, and the law as set out above, the Court makes the following findings:

   a)Mr Seymour’s statement of affairs was filed in Perth on 12 September 2001 in connection with the first, creditor’s petition, bankruptcy;

   b)Mr Seymour’s filing of a statement of affairs on 12 September 2001 in relation to the first, creditor’s petition, bankruptcy was filed:

   i)out of time; and

   ii)in the wrong District of the Official Receiver;

   and therefore failed to comply with s.54(1) of the Bankruptcy Act;

   c)Mr Seymour’s filing of a statement of affairs was an attempt to comply with s.54(1) of the Bankruptcy Act;

   d)the attempt to comply with s.54(1) of the Bankruptcy Act by filing a statement of affairs in connection with the first, creditor’s petition, bankruptcy, whilst irregular or defective because it was late, in the wrong District and filed at the same time as a debtor’s petition, was an attempt which is capable of validation under s.306(1) of the Bankruptcy Act by reason of it being a formal defect or irregularity;

   e)no sufficient reason has been given to extend time for the filing of the statement of affairs until 12 September 2001, but an extension of time is not necessary for the relief sought by the applicant to be granted; and

   f)the filing of the statement of affairs by Mr Seymour was not in connection with the second, debtor’s petition, bankruptcy.

6. Having regard to the relief sought by the applicant in light of the findings set out above it is:

   a)not appropriate to extend time for filing of Mr Seymour’s statement of affairs in relation to the first, creditor’s petition, bankruptcy;

   b)not appropriate to make a declaration that there has been compliance with s.54 of the Bankruptcy Act when there has not been compliance;

   c)appropriate to make a declaration that the filing of the 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 the formal defect or irregularity of it being filed late, in the wrong District, and at the same time as a debtor’s petition; and

   d)appropriate to make a declaration that the first respondent was discharged from the first, creditor’s petition, bankruptcy by operation of s.149 of the Bankruptcy Act on 13 September 2004.

7. In circumstances where the Official Receiver is the applicant, and the first respondent is trustee in bankruptcy in relation to the first, creditor’s petition, bankruptcy and consents to the orders sought, and the first respondent is aware of the application and does not appear, it does not appear to the Court that any injustice will be occasioned by the making of declarations in the above terms or by the annulment of the second, debtor’s petition, bankruptcy. Indeed, no person has appeared before the Court alleging that there will be any injustice, let alone substantial injustice, arising from the declarations and orders sought by the applicant, and which have been granted in part and varied in part, but which are effectively to the same effect.[53]

   [53] Cable at para.20 per Hely J: “the onus of showing ‘substantial injustice’ lies upon the person who asserts it, and it must be the irregularity which occasions the substantial injustice.”

8. The Court notes that had it concluded that the statement of affairs filed by Mr Seymour on 12 September 2001 was indeed a statement of affairs in relation to the second, debtor’s petition, bankruptcy, that the declarations which are now to be made might not have been able to have been made. The reason for that is that, as in Macchia, there would have been no step taken by Mr Seymour in purported compliance with the requirements of s.54(1) in respect of the first, creditor’s petition, bankruptcy, but rather steps taken in relation to the second, debtor’s petition, bankruptcy, thereby arguably precluding the making of an order validating the filing of the statement of affairs as a statement of affairs in connection with the first, creditor’s petition, bankruptcy.[54] By reason of the facts and findings made by the Court it is not necessary to deal with that issue.

   [54] See especially Machia FCR at 244-245 per Hill J; FCA at paras.28-29 per Hill J; FCR at 251 per Weinberg J; FCA at para.65 per Weinberg J.

Section 33A claim

1. The applicant contended that, alternatively, an order might be made under s.33A of the Bankruptcy Act, which provides that where a statement of affairs was filed for the purposes of s.54 of the Bankruptcy Act, if the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed.[55]

   [55] Bankruptcy Act, s.33A(1) and (2).

2. Because of the findings made earlier in these Reasons for Judgment it is unnecessary to express a view on the applicability of s.33A of the Bankruptcy Act to the facts of this case.[56]

   [56] For a case involving s.33A of the Bankruptcy Act, and whether a lack of information invalidated a statement of affairs such that it could not have been filed for the purposes of s.54 of the Bankruptcy Act, see Wangman v Official Receiver [2005] FMCA 504; on appeal Wangman v Official Receiver [2006] FCA 202. See also Nicols v Geekie (2007) 214 FLR 188; [2007] FMCA 1576 on the s.54(1) point.

Conclusion and orders

1. For the reasons set out above there will be:

   a)An order in the following terms:

   i)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;

   b)declarations in the following terms:

   i)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; and

   ii)that the first respondent was discharged from the Creditor’s Petition Bankruptcy by operation of s.149 of the Bankruptcy Act on 13 September 2004;

   and

   c)a further order that there be no order as to costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  Sandra Gough

Date:  5 December 2008

[18] D’Elboux, paras 7 and 8 per Hill J.