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Sofia v Pattison

Sofia v Pattison

Case [1997] FCA 1586 20 October 1997

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FEDERAL COURT OF AUSTRALIA
BANKRUPTCY – filing statement of affairs – whether leaving statement at unattended counter constitutes “filing” – whether copy statement of affairs may be filed – whether s 306(1) of the Bankruptcy Act 1966 (Cth) permits a deficiency in filing to be cured
Bankruptcy Act 1966 (Cth) ss 33(1)(c), 54(1), 149(4), 306(1)
Nilant v Macchia, (1997) 148 ALR 329 referred to
Purden Pty Limited v Registrar of Bankruptcy (1982) 43 ALR 512 distinguished
Re Staples v Anor; Ex parte Baker (1996) 67 FCR 541 followed
Re Wheeler v Reynolds; Ex parte Kerr and Crowe v Anor (1988) 20 FCR 185 followed
JOHN SOFIA & GRACE SOFIA v PAUL PATTISON (AS TRUSTEE OF THE PROPERTY OF JOHN SOFIA AND GRACE SOFIA, BANKRUPTS) and OFFICIAL RECEIVER IN AND FOR THE BANKRUPTCY OF THE STATE OF VICTORIA

VG 7619 of 1997
FINKELSTEIN J
MELBOURNE
20 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 7619 of 1997

BETWEEN:

JOHN SOFIA and
GRACE SOFIA
Applicants

AND:

PAUL PATTISON and
OFFICIAL RECEIVER IN AND FOR THE BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Respondents

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

20 OCTOBER 1997

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.The applicants have complied with s 54(1) of the Bankruptcy Act 1966 (Cth) by filing copies of their statements of affairs with the Registrar of Bankruptcy District of Victoria on 22 September 1994.

AND THE COURT ORDERS THAT:
2.The time provided for the filing of the applicants’ statements of affairs be extended to 22 September 1994.

3. The applicants pay the second respondent’s costs of the application.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 7619 of 1997

BETWEEN:

JOHN SOFIA and
GRACE SOFIA
Applicants

AND:

PAUL PATTISON and
OFFICIAL RECEIVER IN AND FOR THE BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Respondents

JUDGE:

FINKELSTEIN J

DATE:

20 OCTOBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
HIS HONOUR: On 23 August 1993, a sequestration order was made by the Deputy Registrar in Bankruptcy against the estate of each of the first applicant, John Sofia, and his wife, the second applicant, Grace Sofia.

Section 54(1) of the Bankruptcy Act 1966 (Cth), as in force at that time, provided that where a sequestration order is made the person against whose estate it is made shall within 14 days of being notified of the bankruptcy make out and file in the office of the Registrar in bankruptcy in the district where the sequestration order was made a statement of his or her affairs and provide a copy of that statement to the trustee of the estate of the bankrupt.
In November 1993, shortly after the sequestration orders were made, Mr Sofia attended at the office of the Insolvency and Trustee Service of Australia. During the course of his attendance he provided to an officer of the Service an original statement of his affairs…

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.

Continue reading Sofia v Pattison

Details

AGLC: Sofia v Pattison [1997] FCA 1586
Case: [1997] FCA 1586
Decision Date: 20 Oct 1997

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Sofia v Pattison involves the applicants, John Sofia and Grace Sofia, who are appealing the decision of the Deputy Registrar in Bankruptcy who made a sequestration order against them on 23 August 1993. The applicants argue that they have complied with the requirements of the Bankruptcy Act 1966 (Cth) by filing copies of their statements of affairs with the Registrar of Bankruptcy District of Victoria on 22 September 1994. The respondents, Paul Pattison and the Official Receiver in and for the Bankruptcy District of the State of Victoria, contest the applicants' claims.

The primary legal issue before the court was whether leaving a statement of affairs at an unattended counter constitutes "filing" as required by s 54(1) of the Bankruptcy Act 1966 (Cth). The court also had to determine whether filing a copy statement of affairs is sufficient compliance with s 54(1) of the Act and whether s 306(1) of the Act permits a deficiency in filing to be cured.

Justice Finkelstein held that leaving a statement of affairs at an unattended counter does not constitute "filing" for the purposes of s 54(1) of the Bankruptcy Act. The court held that the word "file" in s 54(1) refers to the act of the bankrupt and not the act of the Registrar. The court found that filing a copy statement of affairs is not sufficient compliance with s 54(1) as the subsection refers to the original statement and not a copy statement. The court held that s 306(1) of the Act applies to "proceedings" taken under s 54(1) and that no injustice will result from the fact that the applicants filed a copy statement of affairs rather than an original statement. The court declared that the statements of affairs that were filed on 22 September 1994 should be treated as having regularly been filed. The court also made an order extending the time fixed by s 54(1) for the filing of a statement of affairs until 22 September 1994.

The court's final orders were that the applicants have complied with s 54(1) of the Bankruptcy Act 1966 (Cth) by filing copies of their statements of affairs with the Registrar of Bankruptcy District of Victoria on 22 September 1994, and that the time provided for the filing of the applicants' statements of affairs be extended to 22 September 1994. The applicants were also ordered to pay the second respondent's costs of the application.

Orders