Sweeney v Skyring

[2000] FCA 1126

FEDERAL COURT OF AUSTRALIA

Sweeney v Skyring [2000] FCA 1126

BANKRUPTCY – where bankrupt fails to file statement of affairs and all reasonable steps taken by trustee to acquire statement – whether Court should order pursuant to s 146 of the Bankruptcy Act 1966 (the Act) that distribution of dividends amongst creditors who have proved their debts should proceed in accordance with Part VI Division 5 of the Act – consideration of relevance of bankrupt’s contentions regarding s 36(2) of the Reserve Bank Act 1959 to the making of an order for distribution

Bankruptcy Act 1966, s 146
Reserve Bank Act 1959, s 36(2)

Skyring v Ramsey [2000] FCA 774 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to
Henderson v Henderson (1843) 67 ER 313 referred to

PAUL DESMOND SWEENEY v ALAN GEORGE SKYRING

QG 7022 OF 1996

SPENDER J
2 AUGUST 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7022 OF 1996

BETWEEN:	PAUL DESMOND SWEENEY APPLICANT
AND:	ALAN GEORGE SKYRING RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	2 AUGUST 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Distribution of dividends amongst the creditors who have proved their debts in the estate proceed in accordance with Part VI Division 5 of the Bankruptcy Act 1966 as if the bankrupt had filed a statement of his affairs and those creditors had been stated to be creditors in it.

2.The respondent pay the applicant’s costs of and incidental to the motion, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7022 OF 1996

BETWEEN:	PAUL DESMOND SWEENEY APPLICANT
AND:	ALAN GEORGE SKYRING RESPONDENT

JUDGE:	SPENDER J
DATE:	2 AUGUST 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application, pursuant to notice of motion filed 15 February 1999, under s 146 of the Bankruptcy Act 1966.  That section provides:

   “Where a bankrupt has failed to file a statement of his or her affairs as required by this Act, the Court may, on the application of the trustee, upon such terms as it thinks fit, order that distribution of dividends amongst the creditors who have proved their debts shall proceed in accordance with this Division as if the bankrupt had filed a statement of his or her affairs and those creditors had been stated to be creditors in it.”

2. The contention on behalf of the trustee, Mr Sweeney, is that in the circumstances disclosed by the evidence on the motion, it would be appropriate for the Court to permit him to proceed with distribution of dividends in the absence of a statement of affairs.  It is submitted that the trustee has taken all reasonable steps to obtain a statement of the bankrupt, Mr Skyring’s, affairs from the bankrupt, but has been unable to do so.

3. Further, it is said that the trustee has taken all reasonable…