Skalkos v Nicols

[2009] FCA 346

FEDERAL COURT OF AUSTRALIA

Skalkos v Nicols [2009] FCA 346

BANKRUPTCY – meaning of “income” and “fringe benefit”.

BANKRUPTCY – application for amendment by the Court of assessment notices issued by a trustee in bankruptcy – whether the Court has a discretionary power to make the order sought.

EVIDENCE – burden of proof – inferences that may be drawn from failing to call witnesses.

Bankruptcy Act 1966 (Cth) ss 30, 80, 139J, 139K, 139L, 139ZA, 139ZF, 178
Fringe Benefits Tax Assessment Act 1986 (Cth)
Bankruptcy Regulations 1996 regs 6.12, 6.12C; Sch 4 cl 30.3

Bond v The Trustee of the Property of Alan Bond, A Bankruptcy (1994) 52 FCR 304
Ellis, Re; Ex parte Jefferson [1995] FCA 81
Fabre v Arenales (1992) 27 NSWLR 437
Jones v Dunkel (1959) 101 CLR 298
Lal v Worrell [1999] FCA 1122
Payne v Parker [1976] 1 NSWLR 191
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Zantiotis v Andrew [1987] FCA 722

THEODORE SKALKOS v STEVEN NICOLS

NSD 1201 of 2008

BUCHANAN J
15 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1201 of 2008

BETWEEN:	THEODORE SKALKOS Applicant
AND:	STEVEN NICOLS Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	15 APRIL 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1201 of 2008

BETWEEN:	THEODORE SKALKOS Applicant
AND:	STEVEN NICOLS Respondent

JUDGE:	BUCHANAN J
DATE:	15 APRIL 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. Mr Skalkos was made bankrupt on 25 June 2004 and discharged from bankruptcy on 3 March 2008.  Mr Nicols was his trustee in bankruptcy.  The present litigation arises from a re-assessment made by Mr Nicols during Mr Skalkos’ bankruptcy of contributions required to be paid by him to his estate and three further reassessments subsequently made shortly after Mr Skalkos was discharged from bankruptcy.  Each of the re-assessments increased substantially the contributions Mr Skalkos was required to make.

2. Shortly before a sequestration order was made against Mr Skalkos a company of which he was a director, Bridgemoon Pty Limited, transferred to a company called Cunick Pty Limited title to the property in which Mr Skalkos was living at 31A New South Head Road, Vaucluse for $3.125m.  Bridgemoon took a mortgage over the property

3. Mr Nicols was appointed trustee of Mr Skalkos’ bankrupt estate on 25 January 2005. On 31 January 2005 he wrote to Mr Skalkos notifying his appointment and providing certain other information. The letter was sent to Mr Skalkos by certified mail to 31A New South Head Road, Vaucluse. Amongst other matters the letter informed Mr Skalkos that s 80 of the Bankruptcy Act 1966 (Cth) (“the Act”) required him to inform his trustee of any change of address. Mr Skalkos…