Re Keshow, A.L. Ex parte Reference by Registrar in Bankruptcy Under Subsection 55(3) of the Bankruptcy Act 1966

[1993] FCA 947

Re: AMRAT LAL KESHOW, PETITIONING CREDITOR and
REFERENCE BY REGISTRAR IN BANKRUPTCY UNDER SUBSECTION 55(3) OF THE BANKRUPTCY
ACT 1966
No. TD345 of 1993
FED No. 947/93
Number of pages - 3
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

EXERCISING FEDERAL JURISDICTION IN BANKRUPTCY
BANKRUPTCY DISTRICT OF THE STATE OF TASMANIA
NORTHROP J

CATCHWORDS

Bankruptcy - s.55 Bankruptcy Act 1966 - debtor's petition - circumstances in which Registrar may refer petition to Court - sufficient nexus of debtor with Australia

HEARING

MELBOURNE

#DATE 17:12:1993

COURT

The Court directs:

1. That the Registrar accept the petition.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NORTHROP J On 3 September 1993 AMRAT LAL KESHOW ("the Debtor") presented his petition to the Registrar in Bankruptcy for the Bankruptcy District of the State of Tasmania. The petition stated that the Debtor resided at Tokoriki Place Lautoka Fiji and gave a postal address:- PO Box 125 2 Lautoka Fiji. He gave his occupation as unemployed. The petition had been signed by the Debtor on 1 September 1993 in Fiji.

1. Under cover of a letter dated 1 September 1993, the Debtor forwarded the petition and the accompanying statement of affairs to Mr P. Anstie, an Officer of the Insolvency and Trustee Service, Australia, in Tasmania. Mr Anstie forwarded the documents to the Registrar. The covering letter was as follows:-
   

"I regret that I have had to send these papers from Fiji and not from Launceston.

As you know from my earlier telephone conversation with you from Launceston that it was chronic mental depression which forced me out of my restaurant business in Launceston. In addition, I have also been suffering from matrimonial problems.

Latterly, it became intolerable for me to stay home with my wife, and the best friend I have urged me to stay with him in Fiji. Consequently, he paid all my travelling expenses and I joined him in Lautoka, Fiji.

My current address is given in the attached papers and above."

1. The petition was presented to the Registrar pursuant to subsection 55(1) of the Bankruptcy Act 1966. It appeared to the Registrar that the petition and the statement of affairs accompanying the petition complied with subsection 55(2) but the Registrar had doubts whether she should accept the petition under paragraph 55(3)(a). The doubt arose because it appeared to her the Debtor was not personally present or ordinarily resident in Australia and did not come within any of the other classes of persons enumerated in subsection 43(1) of the Bankruptcy Act. The Registrar referred the petition to the Court under paragraph 55(3)(b) for a direction whether to accept or reject the petition. If the petition is accepted, the Debtor will become a bankrupt "by force of this section and by virtue of presentation of the petition"; see sub-section 55(4A). Under subsection 55(4) the Registrar must comply with the direction given by the Court.

2. On the facts of this reference, the procedure adopted by the Registrar was correct. This is explained in the reasons for determination in the matter of John Coote, being VP No. 932 of 1993 and dated 17 December 1993. A copy of those reasons is attached to these reasons. The Debtor was given notice that the reference was to come before the Court on 19 October 1993. The Debtor did not appear. His solicitor was given notice also. There was no appearance on behalf of the Debtor.

3. The Court turns to consider what direction it should give to the Registrar.

4. The facts of this reason are very different from the facts of In Re Coote. In addition to the matters referred to in the letter set out earlier in these reasons, the facts set out in the statement of affairs can be summarized. The debtor disclosed a large number of unsecured creditors being owed a total sum of $97,158. A secured creditor was owed $4000 on the security of a motor car valued at $6500. The assets disclosed amounted to $33,500, being $1,500 owing on the sale of his business and the balance being furniture and effects. The Debtor has an Australian passport and in all probability is an Australian citizen. He was born on 7 August 1938. He states the causes of his bankruptcy as follows:-
   

"I owned/managed/operated a family restaurant (63

Cimitier Street, Launceston) and became too ill in March 1993 to continue and was forced to sell it at well below marked price (at only $19,300)."

1. Thereafter, he became unemployed and received Commonwealth sickness benefits. He gave the name and address of his accountant in Launceston and Hobart and also the name and address of his solicitor, each of whom could supply details of the Debtor and of his financial affairs.

2. The Debtor, although not present or residing in Australia, has had a close connection with Australia. It is not clear if he intends never to return to Australia. He has assets in Australia. Obviously he is insolvent. In all the circumstances this is a case where his petition should be accepted.

3. This appears to be a genuine petition for the purposes of the Bankruptcy Act.

4. The Court directs the Registrar to accept the petition.