Piepkorn v Scott - [2004] FCA 1617

FEDERAL COURT OF AUSTRALIA
Piepkorn v Scott [2004] FCA 1617
HENRIETTE PIEPKORN v ALAN SCOTT
No S 209 of 2004
FINN J
ADELAIDE
7 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 209 OF 2004

BETWEEN:

HENRIETTE PIEPKORN
APPLICANT

AND:

ALAN SCOTT
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

7 DECEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The trustee’s costs be paid out of the bankrupt’s estate.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 209 OF 2004

BETWEEN:

HENRIETTE PIEPKORN
APPLICANT

AND:

ALAN SCOTT
RESPONDENT

JUDGE:

FINN J

DATE:

7 DECEMBER 2004

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This application by Ms Piepkorn is a consequence of my decision in Piepkorn v Minister of Employment and Training [2004] FCA 1157. In that matter I dismissed Ms Piepkorn’s application as incompetent on the grounds that, as she was an undischarged bankrupt, the cause of action she sought to enforce was and remained vested in her trustee in bankruptcy.
In the present application Ms Piepkorn seeks under s 153B(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) to have the sequestration order made against her annulled seemingly on the ground that I ought be satisfied the order ought not to have been made. No supporting affidavit setting out the grounds upon which annulment is sought has been filed in accordance with O 77 r 42(1) of the Federal Court Rules. The Court has power to dispense with compliance with the Rules: see O 1 r 8. As no useful purpose would be served either by refusing or by adjourning the application because of the non-compliance with O 77 r 42(1), I intend to dispense with compliance with that rule.
BACKGROUND
The sequestration order of which Ms Piepkorn complains was made against her estate on 13 March 2000 by Mansfield J of this Court. The act of bankruptcy relied upon in the creditor’s petition was a failure to comply with a bankruptcy notice. The debt the subject of the notice was for $2,598.17 plus interest, this debt having arisen as a result of an order for costs made against her in unsuccessful proceedings in the District Court of South Australia against the petitioning creditor Caroma Industries Ltd (“Caroma”). Caroma was her former employer. No appeal was made against that costs order. An unsuccessful appeal was made to the Full Court of this Court against Mansfield J’s order. The matters she has now raised orally before me were in part raised in that appeal which I would note was heard and determined on 28 August 2000: see Piepkorn v Caroma Industries [2000] FCA 1230. I will return to this below.
This is not the first occasion on which a sequestration order has been made against Ms Piepkorn. This previously occurred in 1993 and she was discharged in 1996. The…

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.

Continue reading Piepkorn v Scott

Details

AGLC: Piepkorn v Scott [2004] FCA 1617
Case: [2004] FCA 1617
Decision Date: 7 DECEMBER 2004

CaseChat Overview and Summary

Ms Piepkorn has applied to the Federal Court of Australia to have a sequestration order annulled under s 153B(1) of the Bankruptcy Act 1966 (Cth). The sequestration order, which was made by Mansfield J of this Court on 13 March 2000, was based on Ms Piepkorn's failure to comply with a bankruptcy notice. This failure stemmed from a debt of $2,598.17 plus interest, which arose from a costs order made against her in proceedings in the District Court of South Australia. Ms Piepkorn, who was Caroma's former employee, did not appeal the costs order or the sequestration order, though she did unsuccessfully appeal the latter to the Full Court of this Court. Ms Piepkorn has not filed a statement of affairs, which is required under s 54 of the Act, and this has resulted in a strict liability offence under the same section.

The legal issues before the Court were whether the sequestration order should be annulled and if Ms Piepkorn's failure to file a statement of affairs constituted a strict liability offence. The Court noted that Ms Piepkorn had previously been declared bankrupt in 1993 and was discharged in 1996. However, she has not been discharged from her current bankruptcy due to her failure to file a statement of affairs. This failure has resulted in her committing a strict liability offence under s 54 of the Act, which requires the filing of such a statement within fourteen days of the debtor being notified of the bankruptcy. The Court also noted that Ms Piepkorn's failure to provide information concerning her income for the financial years 2000/2001, 2001/2002 and 2002/2003 had resulted in further breaches of the Act.

The Court held that the application for annulment of the sequestration order should be dismissed and that the trustee's costs should be paid out of the bankrupt's estate. The Court noted that Ms Piepkorn had not provided any affidavit setting out the grounds upon which annulment is sought, as required by O 77 r 42(1) of the Federal Court Rules. However, the Court dispensed with compliance with that rule as no useful purpose would be served by refusing or adjourning the application. The Court also noted that Ms Piepkorn's failure to file a statement of affairs had resulted in a strict liability offence under s 54 of the Act, and that her failure to provide information concerning her income had resulted in further breaches of the Act.

In light of the above, the Court dismissed the application for annulment of the sequestration order and ordered that the trustee's costs be paid out of the bankrupt's estate.

Orders

Orders of the court

1. The application be dismissed.

2. The trustee’s costs be paid out of the bankrupt’s estate.

Background

Background to the litigation

In the present application Ms Piepkorn seeks under s 153B(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) to have the sequestration order made against her annulled seemingly on the ground that I ought be satisfied the order ought not to have been made. No supporting affidavit setting out the grounds upon which annulment is sought has been filed in accordance with O 77 r 42(1) of the Federal Court Rules. The Court has power to dispense with compliance with the Rules: see O 1 r 8. As no useful purpose would be served either by refusing or by adjourning the application because of the non-compliance with O 77 r 42(1), I intend to dispense with compliance with that rule.BACKGROUND The sequestration order of which Ms Piepkorn complains was made against her estate on 13 March 2000 by Mansfield J of this Court. The act of bankruptcy relied upon in the creditor’s petition was a failure to comply with a bankruptcy notice. The debt the subject of the notice was for $2,598.17 plus interest, this debt having arisen as a result of an order for costs made against her in unsuccessful proceedings in the District Court of South Australia against the petitioning creditor Caroma Industries Ltd (“Caroma”). Caroma was her former employer. No appeal was made against that costs order. An unsuccessful appeal was made to the Full Court of this Court against Mansfield J’s order. The matters she has now raised orally before me were in part raised in that appeal which I would note was heard and determined on 28 August 2000: see Piepkorn v Caroma Industries [2000] FCA 1230. I will return to this below. This is not the first occasion on which a sequestration order has been made against Ms Piepkorn. This previously occurred in 1993 and she was discharged in 1996. The reason she has not been discharged under s 149 of the Act is that, unlike on the occasion of her previous bankruptcy, she has failed despite repeated initial requests to file her statement of affairs such that the three year period before discharge under that section has not commenced to run. The affidavit filed by her trustee in this application annexed his correspondence with Ms Piepkorn between 17 March 2000 and 31 August 2000 in which he sought her statement of affairs. A letter written on the latter of these dates after the rejection of her Full Court appeal, warned Ms Piepkorn that the three year bankruptcy period would not begin to run until the statement was filed. By failing to file her statement, Ms Piepkorn has in consequence committed a strict liability offence under s 54 of the Act. That section requires the filing of such a statement within fourteen days of the debtor being notified of the bankruptcy. That time requirement could have been, but was not, extended under s 33(1)(c) of the Act: see Nilant v Macchia (1997) 78 FCR 419. The trustee has in 2002, 2003 and 2004 sought information concerning Ms Piepkorn’s income for the financial years 2000/2001, 2001/2002 and 2002/2003. The required information was not forthcoming: cf s 77 and s 139U of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 209 OF 2004

BETWEEN:	HENRIETTE PIEPKORN APPLICANT
AND:	ALAN SCOTT RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	7 DECEMBER 2004
WHERE MADE:	ADELAIDE

JUDGE:	FINN J
DATE:	7 DECEMBER 2004
PLACE:	ADELAIDE