Porter (Trustee), in the matter of Diesner (Bankrupt)
[2025] FedCFamC2G 1280
•1 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Porter (Trustee), in the matter of Diesner (Bankrupt) [2025] FedCFamC2G 1280
File number(s): SYG 2147 of 2025 Judgment of: JUDGE CLEARY Date of judgment: 1 August 2025 Catchwords: BANKRUPTCY – Ex Tempore - application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 54 of the Bankruptcy Act 1966 (Cth). Legislation: Bankruptcy Act 1966 (Cth) ss 54, 146 Cases cited: Re Shaw; Official Trustee in Bankruptcy [1999] FCA 968 Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 1 August 2025 Place: Parramatta Applicant: Ms M. Kumar of Kemps Petersons Legal Pty Ltd ORDERS
SYG 2147 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF FRANZ DIESNER, BANKRUPT
BETWEEN: JASON LLOYD PORTER IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF FRANZ DIESNER
Applicant
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
1 AUGUST 2025
THE COURT ORDERS THAT:
1.Pursuant to s 146 of the Bankruptcy Act 1966 (Cth) (Act), the applicant, as trustee of the Bankrupt Estate of Franz Diesner, distribute dividends amongst the creditors who have proved their debts in the Bankrupt Estate of Franz Diesner in accordance with Division 5 of Part VI of the Act as if Franz Diesner had filed a statement of affairs and those creditors had been stated to be creditors in it.
2.The applicant’s costs of and incidental to this application are to be paid out of the Bankrupt’s estate in accordance with s 109 of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE, AS REVISED FROM THE TRANSCRIPT)
JUDGE CLEARY
INTRODUCTION
Before me today is an application under s 146 of the Bankruptcy Act 1966 (Cth) (Act) made ex parte by Mr Jason Porter, the Official Trustee in Bankruptcy as trustee of the property of the bankrupt, Franz Diesner. In support of the application there is filed and read an affidavit of Mr Porter, sworn 16 June 2025. Mr Porter is a chartered accountant from SV Partners Pty Ltd and in his affidavit recounts the history of the matter.
The purpose of s 146 of the Bankruptcy Act is to give the Court the means to ensure that those with an interest in the bankrupt are not prejudice by reason of the failure of the bankrupt to provide a statement of affairs as required under section 54 of the Act: see Re Shaw; Official Trustee in Bankruptcy [1999] FCA 968. The section applies even where the failure is the result of circumstances beyond the control of the bankrupt such as mental infirmity, or death.
The order sought in the application is that the Court permit the distribution of the estate of the bankrupt amongst the creditors to the bankrupt estate of the bankrupt who have proved their debts in accordance with Division 5 Part 6 of the Act, as if the bankrupt had filed a statement of affairs and those creditors had been stated to be creditors in it. An order is also sought that the costs of the applicant of, and incidental to, this application be paid out of the estate of the bankrupt.
I do not propose to set out exhaustively the chronology of the matter described in Mr Porter’s comprehensive affidavit, save for the following matters.
On 26 August 2021, the bankrupt was made bankrupt by a sequestration order made by this Court upon the petition of The Owners – Strata Plan No 15642. On the same date, Mr Porter was appointed trustee of the bankrupt estate.
On 21 February 2022, the Bankrupt died.
I accept, from Mr Porter’s affidavit, that prior to his death, Mr Diesner failed to file a statement of affairs as required by section 54 of the Act.
Mr Porter deposes to the fact that the administration of the bankruptcy is complete save for a distribution to the creditors who have proved their debts. Further, his affidavit sworn on 16 June 2025 sets out details of the creditors who have lodged proofs of debt and the outcome of those claims. There is no need for me to go into detail in the judgment about those matters.
The evidence of Mr Porter is to the effect that the bankruptcy administration is all but complete except for the distribution of a dividend to creditors. I consider any further delay in this matter in my view, in view of the evidence, would be unnecessary and inappropriate.
CONCLUSION
In all the circumstances, I am satisfied that it is appropriate to make the orders sought by the applicant trustee.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 11 August 2025
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