Re McFadyen, M. Stephens Publishing P/L & anor v Taylor, B.K. & anor

[1992] FCA 876

JUDGMENT NO. ..g ..2,.6,...1,..%2i

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF	)
THE STATE OF VICTORIA	)
) No. VB 1203 of 1992

Re :  MARY-ANNE McFADYEN

A Debtor

B E T W E E N :

STEPHENS PUBLISHING PTY LTD and FILM AND BOOK PUBLISHING PTY LTD

Applicants

- and -
BARRY KEITH TAYLOR as Trustee of the estate of Mary-Anne McFadyen and MARYANNE FAHEY (also known as Mary-Anne McFadyen)

Respondents

Coram:	Olney J
Place:	Melbourne
Date:	16 November 1992

EX TEMPORE JUDGMENT

The Court's jurisdiction to annul a bankruptcy is found in section 153B of the Bankruptcy A c t . In the present case the	been presented and further that it ought not to have been	applicants assert that the debtor's petition ought not to have
accepted by the Registrar.
Neither the bankrupt nor the trustee of her estate oppose the application.
I was informed at the outset that on the assumption that the bankruptcy will be annulled the applicants and the bankrupt have reached a commercial settlement as between themselves, but it was acknowledged that neither absence of opposition nor the fact of the proposed settlement in any way affected the duty of the Court to exercise its discretion in the matter.
I do not propose to go into the material that has been canvassed in support of the application. I have reached a firm view that there are grounds pursuant to section 153B upon which it is proper in the exercise of the Court's discretion to annul the bankruptcy.
Counsel has demonstrated a number of inadequacies in the
inadequacies in responses to very relevant questions posed in statement of affairs lodged with the petition. They are
the statement of affairs and it seems to me that it was inappropriate that the petition should be accepted with the papers in that incomplete state. It would seem from material now put to the Court that had all of the information sought in the statement of affairs been provided, it may well have led the Registrar to the conclusion that there was no basis upon which the petition should be accepted.
But whether that be so or not, the conduct of the debtor in petitioning in the circumstances which have been outlined indicates that the petition ought not to have been presented. There is a very strong basis to infer that the petitioning debtor has resorted to the facilities of the Bankruptcy A c t for an ulterior purpose.
There is nothing in the evidence to suggest that the solicitors acting on the debtor's behalf at the relevant time were aware of what was contemplated and done by her on 8 April
1992, although it seems obvious that the trustee was a party
to what can only be described as the deception. It is a matter of great concern to the Court that a trustee who enjoys a special position in the administration of the Act should become involved in a matter like this and conduct himself in the manner that has been demonstrated by the evidence. I note that no application for costs has been made by the trustee nor for any remuneration as trustee and it seems to me that that is a most appropriate stand for him to take in the
circumstances.
I am satisfied on the material before me that the debtor's
petition ought not to have been presented and further I am satisfied that it ought not to have been accepted by the Registrar. Accordingly, I make an order in terms of paragraph 2 of the application, namely, that the bankruptcy of Mary-Anne McFadyen which took effect upon the acceptance on 28 April
1 9 9 2 by the Registrar of a debtor's petition dated 8 April
1992 and presented to the Court by the debtor on 8 April 1992, be annulled.

This is an application by two creditors of a bankrupt to annul the bankruptcy of a debtor which occurred upon the acceptance by the Registrar of the debtor's own petition.

I certify that this and the

preceding 3 pages is a true copy of the Ex Tempore Judgment of the Honourable Mr Justice Olney

Associate:  34-5L-?4i6-

Dated: a . X ; - 1492

Mr R. Kendall (instructed by Stephens Solicitors) appeared for the applicant.

Mr J. Dixon (instructed by D.E. Phillips) appeared for the debtor.

Mr S. Dunn (solicitor) appeared for the trustee.

Date of Hearinq:	16 November 1992
Place:	Melbourne
Date of Judament:	16 November 1992