Rimanic and Inspector-General in Bankruptcy - [2010] AATA 875

CATCHWORDS – BANKRUPTCY – trustee’s objection to discharge of bankruptcy – special ground - failure of bankrupt to provide written information as required by trustee for contribution assessment period – whether power to cancel objection – decision affirmed.

PRACTICE AND PROCEDURE – no burden of proof on bankrupt other than in relation to establishing that had a reasonable excuse for the conduct or failure that constituted the special ground.

Bankruptcy Act 1966, ss 80(1), 139K, 139L, 139L(1), 139M, 139P(1), 139S, 139T, 139U, 139U(1), 139U(1)(b), 139U(2), 139U(3), 139V, 139W(1), 139W(2), 139W(4), 139WA, 139X, 139X(1), 139X(2), 139Y(1), 139Y(2), 139Z(1), 149, 149B, 149B(1), 149B(2), 149C(1), 149C(1A), 149D, 149D(1)(d) and (e), 149G, 149H(1), 149H(3), 149H(4), 149J(1), 149J(3), 149K, 149N, 149N(1A), 149N(2), 149N(3), 149Q(a)
and (b)

Acts Interpretation Act 1901, ss 28A and 29
Administrative Appeals Tribunal Act 1975, s 43
Evidence Act 1995, s 160
Veterans’ Entitlements Act 1986, s 120(4)

McDonald v Director-General of Social Security (1984) 6 ALD 6
Repatriation Commission v Smith (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17
Re Caruana and Inspector-General in Bankruptcy [2008] AATA 307
Re D’Souza and Inspector-General in Bankruptcy [2010] AATA 708
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147

DECISION AND REASONS FOR DECISION [2010] AATA 875

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2009/4754

GENERAL ADMINISTRATIVE DIVISION )

Re:MICHAEL RIMANIC

Applicant

And:INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 9 November 2010

Decision:The Tribunal decides to affirm the decision of the respondent dated
9 September 2009 confirming the trustee’s objection dated 14 May 2009 to the applicant’s discharge from bankruptcy.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 20 April 2006, Mr Michael Rimanic became a bankrupt as a result of a sequestration order made against his estate under the Bankruptcy Act 1966 (Bankruptcy Act). Mr Stirling Horne was appointed to act as the trustee of the bankrupt estate. Unless the trustee makes an objection and that objection has taken effect, a bankrupt is discharged at the end of the period specified in s 149 of the Bankruptcy Act. On 14 May 2009, Mr Horne filed with the Official Receiver a Notice of Objection to Mr Rimanic’s discharge from bankruptcy.[1] He specified two grounds: ss 149D(1)(d) and (e). The Notice of Objection has taken effect and has led to the extension of Mr Rimanic’s bankruptcy from 17 May 2009 until 17 May 2014. The Inspector-General in Bankruptcy (Inspector-General) confirmed that Notice of Objection to Discharge in respect of the ground specified in s 149D(1)(d) but not in respect of s 149D(1)(e). As one ground remains, the Notice of Objection continues to have effect to extend Mr Rimanic’s bankruptcy.

[1] Bankruptcy Act, s 149B

I have decided to affirm the decision of the Inspector-General dated
9 September 2009 confirming the trustee’s objection dated 14 May 2009 to
Mr Rimanic’s discharge from…

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.

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Details

Case: [2010] AATA 875
Decision Date: 9 November 2010

CaseChat Overview and Summary

In the case of Rimanic and Inspector-General in Bankruptcy, the applicant, Michael Rimanic, sought to overturn the decision of the Inspector-General in Bankruptcy to confirm the trustee's objection to his discharge from bankruptcy. The trustee, Mr Stirling Horne, objected to Rimanic's discharge on two grounds, but the Inspector-General confirmed the objection only in respect of one ground, namely that Rimanic had failed to provide written information as required by the trustee for a contribution assessment period. The tribunal was required to decide whether the Inspector-General's decision was correct.

The tribunal found that the Inspector-General's decision was correct for the following reasons. The tribunal first considered whether any of the circumstances in s 149N(1) of the Bankruptcy Act prevailed in relation to the ground of objection. The tribunal found that none of those circumstances prevailed, and so the Inspector-General, and the tribunal, had no power to cancel the objection. The tribunal also found that the circumstances in s 149N(1A) did not apply, as the bankrupt had failed to establish a reasonable excuse for his failure to provide the information as required.

The tribunal concluded that the Inspector-General's decision to confirm the trustee's objection was correct, and so the tribunal affirmed that decision. The bankrupt's discharge from bankruptcy is extended until 17 May 2014. The tribunal's decision is final and binding.

Orders