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Trihakis v Official Receiver (Vic)

Trihakis v Official Receiver (Vic)

Case [1999] FCA 1426 18 October 1999

Bankruptcy Act 1966

Statement of Affairs

Presumption of Regularity

Section 306(1) of the Bankruptcy Act 1966

Substantial Injustice

Bankruptcy Law

Insolvency Law

Type to search within this case.

FEDERAL COURT OF AUSTRALIA
Trihakis v Official Receiver (Vic) [1999] FCA 1426
BANKRUPTCY – filing statement of affairs – whether statement of affairs filed with Registrar in Bankruptcy as required.
Bankruptcy Act 1966 (Cth) s 54(1), s 149, s 306(1)
Acts Interpretation Act 1901(Cth) s 28A
Sofia v Pattison (unreported, Finkelstein J, 20 October 1997) referred
Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 referred
Tsingaris v Official Receiver [1999] FCA 1389 referred
Nilant v Macchia (1997) 78 FCR 419 referred
Rosenfeldt v Official Trustee in Bankruptcy (1997) 79 FCR 340 distinguished
Re Van-Minnen; ex parte Harrison [1999] FCA 43 distinguished
DESPINA TRIHAKIS v THE OFFICIAL RECEIVER IN BANKRUPTCY & ANOR
V 7631 of 1999
KENNY J
18 OCTOBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 7631 OF 1999

BETWEEN:

DESPINA TRIHAKIS
Applicant

AND:

THE OFFICIAL RECEIVER IN BANKRUPTCY
First Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

18 OCTOBER 1999

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
The applicant has complied with s 54(1) of the Bankruptcy Act 1966 (Cth) by filing her statement of affairs with the Registrar in Bankruptcy for the District of Victoria on 20 May 1996.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 7631 OF 1999

BETWEEN:

DESPINA TRIHAKIS
Applicant

AND:

THE OFFICIAL RECEIVER IN BANKRUPTCY
First Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:

KENNY J

DATE:

18 OCTOBER 1999

PLACE:

MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Ms Despina Trihakis, a bankrupt, who seeks a declaration that a statement of affairs signed by her on 17 May 1996 be deemed to have been filed in the office of the Registrar of Bankruptcy on 20 May 1996. At the hearing Ms Trihakis was represented by her solicitor, Ms H Mastos. There was no appearance for either respondent. By affidavit sworn 8 October 1999, Mr M J Ennis, an officer of the first respondent authorised to make the affidavit on behalf of both respondents, deposed that the second respondent “neither supports nor opposes the orders sought by the Applicant which would discharge him (sic) from his bankruptcy”.
The outcome of the application is important because, by virtue of s 149 and s 54(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) as it stood in May 1996, the bankrupt is discharged from bankruptcy at the end of the period of three years from the date on which she filed her statement of affairs in the office of the Registrar. In May 1996, s 54(1) of the Act provided:
Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he is notified of the bankruptcy:
(a)make out and file in the office of the Registrar for the District in which the sequestration…

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 Trihakis v Official Receiver (Vic)

Details

AGLC: Trihakis v Official Receiver (Vic) [1999] FCA 1426
Case: [1999] FCA 1426
Decision Date: 18 OCTOBER 1999

CaseChat Overview and Summary

Despina Trihakis, a bankrupt, applied to the Federal Court of Australia for a declaration that her statement of affairs, signed on 17 May 1996, be deemed to have been filed with the Registrar in Bankruptcy on 20 May 1996. The application hinged on whether Ms Trihakis had complied with the statutory requirement to file her statement of affairs within 14 days of being notified of her bankruptcy. The respondents, the Official Receiver in Bankruptcy and the Official Trustee in Bankruptcy, neither supported nor opposed the application, effectively leaving it to the Court to determine the matter. The importance of the outcome lay in the potential discharge of Ms Trihakis from bankruptcy at the end of three years from the date she filed her statement of affairs, as mandated by sections 149 and 54(1) of the Bankruptcy Act 1966.

The court was required to decide whether Ms Trihakis had indeed filed her statement of affairs with the Registrar in Bankruptcy within the statutory timeframe. The key issue was whether the statement of affairs had been filed in the office of the Registrar as required by section 54(1) of the Bankruptcy Act 1966. Ms Trihakis claimed she had left her signed statement of affairs with her husband, who assured her he would deliver it to the relevant authorities. The court needed to determine if this constituted compliance with the statutory requirement and, if so, the date of filing.

The court reasoned that Ms Trihakis had, with her husband's assistance, completed the required statement of affairs and left it with her husband for delivery. Her husband had confirmed to her that he had organised the filing as directed by the Insolvency and Trustee Service Australia's letter. The Registrar received the husband's statement of affairs by post, and the trustee received Ms Trihakis's statement of affairs later, suggesting it had been forwarded by her husband. Given the circumstances and the absence of evidence to the contrary, the court applied the presumption of regularity to find that Ms Trihakis's statement of affairs had been filed with the Registrar in Bankruptcy on 20 May 1996. The irregularity of possibly filing a copy instead of the original did not result in substantial injustice and could be excused under section 306(1) of the Act.

The court declared that Ms Trihakis had complied with section 54(1) of the Bankruptcy Act 1966 by filing her statement of affairs with the Registrar in Bankruptcy on 20 May 1996. The court emphasized the need for legislative reform to prevent similar injustices in the future.

Orders