Re Nguyen, T. v Ex parte Defiance Milling Co P/L

[1994] FCA 1027

Re: TU NGUYEN
Ex parte: DEFIANCE MILLING CO PTY LTD
No. QB289 of 1994
FED No. 1027/94
Number of pages - 2
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Bankruptcy - failure to file a statement of affairs - committal of bankrupt to prison for contempt

Bankruptcy Act 1966 - s 54(3), 176(1)

HEARING

BRISBANE, 15 December 1994
#DATE 16:12:1994

Counsel for the applicant: Mr F. Redmond

Solicitors for the applicant: Feez Ruthning

Respondent: No appearance

ORDER

THE COURT ORDERS THAT:

1. TU NGUYEN be committed to prison until further order for contempt of court for failing to file a statement of affairs as required

by s.54(3) of the Bankruptcy Act 1966.

THE COURT DIRECTS THAT:

2. A copy of this order be served personally upon TU NGUYEN as soon as practicable and that an affidavit of such service be filed

forthwith.

3. The warrant for committal lie in the office of the Registrar for a period of 30 days, from the date of personal service of this

order upon the bankrupt and be not executed if the bankrupt files a statement of affairs as required by s.54(3) within that time.

THE COURT GRANTS:

4. The parties liberty to apply.

THE COURT ORDERS THAT:

5. The bankrupt pay the trustee's costs of and incidental to the

application to be taxed.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

KIEFEL J On 10 February 1994, a sequestration order was made against Tu Nguyen, the respondent to an application for committal for contempt brought by the trustee in bankruptcy. On 15 February 1994, the trustee wrote to the bankrupt advising of the order for sequestration and generally advising the bankrupt as to his obligations. In particular, that letter drew his attention to the requirement to file a statement of affairs, to what was required to be contained within it and to the time within which that must be undertaken. On 11 March 1994, the trustee wrote requiring urgent attention to the requirements of the Act.

1. The trustee subsequently caused a process server to personally serve upon the bankrupt, as now appears by supplementary affidavits filed by the process server, a copy of the sequestration order together with a notification of his responsibilities as a bankrupt, a warning notice, a statement of affairs, a personal questionnaire, a business questionnaire and an income questionnaire. No response was received by the trustee, and the present application was filed on 15 September 1994 and served personally on the bankrupt on 5 October 1994.

2. The matter came before the court on 1 November 1994, at which time there was no appearance for the bankrupt, but was adjourned to permit further affidavits as to service previously effected to be filed. Whilst there is no affidavit of personal service as to the adjourned hearing today, the trustee's solicitors have forwarded a letter dated 8 November 1994 and which I take to have been forwarded on about that date addressed to the bankrupt at the address where he has previously been served. Those solicitors undertake to file an affidavit as to service by post.

3. The material makes clear that the bankrupt has refused to do any of the matters required by the Act despite those requirements having been drawn to his attention on numerous occasions and despite numerous demands that he do so. He has had notification of the prior application for his committal and has not responded to it. I am satisfied that his obligations have been drawn to his attention and that he would, by reason of those documents, have been well aware of what he is required to do. I am further satisfied that he has simply refused to comply with his statutory obligations and by his last non-appearance on the first return date shown a disinclination to take part in these proceedings.

4. I will be prepared to direct, then, under s.176(1) that service of a notice informing the bankrupt of this adjourned date for hearing be deemed to have been effected by post. With respect to that matter, however, it seems to me that the further opportunity provided by section 176(3) is then appropriate, that is to say that whilst I propose to order the committal of the bankrupt to prison for contempt of court I will also direct that the warrant lie in the office of the Registrar for a period and that it not be executed if the bankrupt complies with the conditions specified in it.

5. I propose to allow a period of 30 days for the purpose of that direction, to be taken from the filing of an affidavit of personal service of notification of this order and notification that a warrant lies in the office of the Registrar.