Official Trustee in Bankruptcy v Thor - [2006] FMCA 1637

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL TRUSTEE IN BANKRUPTCY v THOR

[2006] FMCA 1637

BANKRUPTCY – Failure to file a Statement of Affairs – distribution of dividend amongst creditors.

Bankruptcy Act 1966, ss.54, 77,146, 267B

Official Trustee in Bankruptcy v Raeffaele [2003] FCA 328
Rees v Stubberfield [1999] FCA 1862
Re Sturt; Ex parte Official Trustee in Bankruptcy (2001) 117 FCR 1, [2001] FCA 1649

Applicant:

OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY, THE TRUSTEE OF THE PROPERTY OF EJVIND PEDERSEN THOR, A BANKRUPT

Respondent:

EJVIND PEDERSEN THOR

File Number:

PEG 215 of 2006

Judgment of:

Lucev FM

Hearing date:

1 November 2006

Date of Last Submission:

1 November 2006

Delivered at:

Perth

Delivered on:

1 November 2006

REPRESENTATION

Counsel for the Applicant:

Ms L. Mobilia

Solicitors for the Applicant:

Carles Solicitors

The Respondent:

No Appearance

ORDERS

That the costs, charges and expenses of the administration of the bankruptcy of the Respondent and a distribution of dividends amongst creditors who prove their debts in the estate shall proceed in accordance with Part VI, Division 5 of the Bankruptcy Act as if the Respondent had filed a Statement of Affairs and those creditors had been stated to be creditors in it.
That the Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors until he has lodged his duly completed Statement of Affairs in the required form in the office of the Official Receiver for the State of Western Australia and the Applicant has dealt with the claims of any further creditors disclosed in the Statement of Affairs.
That the costs of and incidental to this Application be fixed in the sum of $2261.75 and be paid out of the bankrupt estate of the Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 215 of 2006

OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY, THE TRUSTEE OF THE PROPERTY OF EJVIND PEDERSEN THOR, A BANKRUPT

Applicant

And

EJVIND PEDERSEN THOR

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

The application

The Applicant seeks an order pursuant to s.146 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) that a distribution of dividends be made to those creditors of the bankrupt estate of the Respondent who prove their debts in accordance with Part VI, Division 5 of the Bankruptcy Act (“the Application”).

Evidence

The Applicant relies on the following documents:
a)the affidavit of Jacqueline Riley sworn 28 August 2006;
b)the affidavits of Stuart Vassiliou sworn 5 October 2006; and
c)the affidavit of Leisa Mobilia sworn 10 October 2006.
Section 54 of the Bankruptcy Act provides that where a sequestration order is made, the person against whose estate it is made must file a Statement of Affairs within 14 days of being notified of the bankruptcy.
Section 146 of the Bankruptcy Act provides that where a bankrupt fails to file a Statement of Affairs the court may order a distribution of dividends among…

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: [2006] FMCA 1637
Decision Date: 1 November 2006

CaseChat Overview and Summary

The Official Trustee in Bankruptcy has brought this matter against Thor, a bankrupt, in the Federal Circuit Court of Australia. The dispute arises from the Respondent's failure to provide a Statement of Affairs as required by the Bankruptcy Act 1966. The Trustee seeks orders for the costs, charges, and expenses of the administration of the bankruptcy to proceed in accordance with the Act, and that the Respondent not be entitled to any surplus funds until a Statement of Affairs is lodged.

The court was required to determine whether it could impose the specified orders, and whether it was appropriate to do so given the circumstances of the case. The Trustee argued that the Respondent's failure to provide a Statement of Affairs was an abuse of process, and that the orders were necessary to protect the interests of creditors. The Respondent did not dispute that he had failed to provide a Statement of Affairs, but argued that the orders were excessive and would cause him hardship.

The court found that the Respondent's failure to provide a Statement of Affairs was an abuse of process, and that the orders were necessary to ensure that the administration of the bankruptcy proceeded in accordance with the law. The court noted that the orders were not punitive, but rather were designed to ensure that the interests of creditors were protected. The court also found that the Respondent had not shown that the orders would cause him undue hardship, and that they were therefore appropriate in the circumstances.

The court made the orders as sought by the Trustee, with the costs of the application to be paid out of the bankrupt estate of the Respondent. The court emphasised that the orders were not intended to be punitive, but rather were necessary to ensure that the administration of the bankruptcy proceeded in accordance with the law. The court also noted that the Respondent remained free to apply for relief from the orders if he was able to show that he was unable to comply with them due to hardship.

Orders

Orders of the court

That the costs, charges and expenses of the administration of the bankruptcy of the Respondent and a distribution of dividends amongst creditors who prove their debts in the estate shall proceed in accordance with Part VI, Division 5 of the Bankruptcy Act as if the Respondent had filed a Statement of Affairs and those creditors had been stated to be creditors in it.

That the Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors until he has lodged his duly completed Statement of Affairs in the required form in the office of the Official Receiver for the State of Western Australia and the Applicant has dealt with the claims of any further creditors disclosed in the Statement of Affairs.

That the costs of and incidental to this Application be fixed in the sum of $2261.75 and be paid out of the bankrupt estate of the Respondent.

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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