Trustee of the Property of Robinson, in the matter of Robinson (Bankrupt)
[2025] FedCFamC2G 1285
•14 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trustee of the Property of Robinson, in the matter of Robinson (Bankrupt) [2025] FedCFamC2G 1285
File number(s): SYG 2306 of 2025 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 August 2025 Catchwords: BANKRUPTCY – Failure to lodge a Statement of Affairs – Bankrupt for over 10 years – Where Trustee has taken reasonable steps to notify the bankrupt – Where Trustee has taken reasonable steps to investigate creditors – Whether the Court ought to exercise its discretion Legislation: Bankruptcy Act 1966 (Cth) ss 109, 146 Cases cited: Lombe (Trustee) In the Matter of Rahman (Bankrupt) [2017] FCCA 750
Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968
Re Sturt; ex parte Official Trustee in Bankruptcy [2001] FCA 1649
Warren Mckeon Dickson Pty Ltd v Adorni [2013] FCCA 2267
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 8 August 2025 Place: Parramatta Solicitor for the Applicant: Mr Underwood of Craddock Murray Neumann ORDERS
SYG 2306 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF KIM ROBINSON
TRUSTEE OF THE PROPERTY OF KIM ROBINSON, A BANKRUPT
Applicant
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 AUGUST 2025
THE COURT ORDERS THAT:
1.Pursuant to section 146 of the Bankruptcy Act 1966 (Cth) (“Act”), the Applicant be allowed to distribute dividends amongst the creditors of the Bankrupt Estate of Kim Robinson in accordance with Division 5 of Part VI of the Act as if Kim Robinson had filed a statement of affairs and those creditors had been stated to be creditors in it.
2.The Applicant’s costs of and incidental to this application be paid out of the Bankrupt’s estate in accordance with section 109 of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
This is an application made by the Trustee of the property of Kim Robinson, a bankrupt, (“Trustee”) for an order pursuant to s 146 of the Bankruptcy Act 1966 (Cth), that the distribution to creditors proceeds as if the bankrupt had filed a Statement of Affairs and those creditors had been stated to be creditors in it.
The Trustee relies upon the following in support of his application:
(a)Affidavit of Dominic Underwood filed 7 August 2025;
(b)Affidavit of Alan Cooper filed 7 August 2025; and
(c)Affidavit of Robert Scott Woods filed 1 July 2025.
The Trustee has provided notice of the application to the creditors who have lodged a proof of debt in the administration of the bankrupt estate and has attempted to bring the application to the attention of the bankrupt, by leaving the Affidavit of Robert Scott Woods filed 1 July 2025, together with the Application filed 1 July 2025, at the bankrupt’s last known address and sending the documents to the bankrupt both by email and post.
RELEVANT LEGAL PRINCIPLES
Section 146 of the Act states:
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.
The Court’s power to grant relief pursuant to s 146 of the Act is a discretionary one.
The purpose of the section is to give the Court the means of ensuring that an absence of a Statement of Affairs does not prejudice those with an interest in the estate.[1] It also intends to facilitate a distribution to creditors where the trustee does not have the benefit of a Statement of Affairs.[2]
[1] Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968 [4].
[2] Re Sturt; ex parte Official Trustee in Bankruptcy [2001] FCA 1649 [14].
The following factors are relevant to whether the Court should exercise its discretion:
(a)It is not necessary to establish a wilful refusal or neglect to file a Statement of Affairs, a mere omission to file is sufficient;[3]
(b)The Court may require evidence that creditors are aware of the application or that the trustee has taken appropriate steps to ascertain whether there are other creditors;[4]
(c)The bankruptcy administration is all but complete, except for distribution of a dividend to creditors who have proved their debts;[5] and
(d)The interests of creditors and of the bankrupt will be considered, at least in estates where there is a surplus of assets over liabilities.[6]
[3] Ibid [14].
[4] Ibid [19].
[5] Lombe (Trustee) In the Matter of Rahman (Bankrupt) [2017] FCCA 750 at [45].
[6] Warren Mckeon Dickson Pty Ltd v Adorni [2013] FCCA 2267 [25].
RELEVANT FACTS
Kim Robinson became bankrupt on 24 February 2012, following the making of a sequestration order by the Court. The order was made after the Deputy Commissioner of Taxation presented a Creditor’s Petition.
Initially, the Official Trustee was appointed as trustee of the bankrupt estate.
On 5 May 2022, the Trustee and another were appointed joint and several trustees of the bankrupt estate. On 24 July 2024, the Trustee was appointed sole trustee of the bankrupt estate.
At the time of the sequestration order, Kim Robinson was the registered proprietor of, and living at, 42 Sapphire Cres, Merimbula, NSW 2548.
On 18 July 2023, the Supreme Court of New South Wales made orders in possession proceedings brought by the Trustee in respect of the property at 42 Sapphire Cres, Merimbula, which has since been sold by the Trustee.
The Trustee has gone to great lengths to inform the bankrupt of the bankruptcy and the bankrupt’s obligation to file a Statement of Affairs, including multiple requests to file a Statement of Affairs and service of relevant documents.
The bankrupt was sent the relevant information and forms multiple times, originally in 2012, again in 2021, and numerous times in 2022, and lastly in 2024. The bankrupt was provided with clear instructions on how to go about completing and lodging the Statement of Affairs.
The letter dated 8 March 2012, from the Official Trustee, is addressed to “Ms Kim Robinson”. All of the subsequent correspondence with the bankrupt either refers to the bankrupt as “Kim” or “Mr Robinson”. The affidavit of Mr Woods refers to the bankrupt as “he/him”. It refers to telephone conversation between the bankrupt and the office of the Trustee on 25 October 2022. A Statutory Declaration dated 26 October 2022, refers to personal service of the “Bankruptcy Form to Submit Statement of Affairs” upon Kim Robinson and notes that “he accepted” the documents. There is nothing to suggest that anything turns on the distinction, if any, between the title and/or pronouns by which the bankrupt was addressed in the letter dated 8 March 2012, to the title and/or pronouns later used to address the bankrupt.
On 25 March 2025, The Official Receiver issued a notice to the bankrupt pursuant to s 77CA of the Act, requesting the bankrupt to file a Statement of Affairs within 14 days. That notice has not been complied with.
The Court is satisfied having regard to the evidence, that the bankrupt had been put on notice of the requirement to complete and lodge a Statement of Affairs.
Despite this, the bankrupt has not filed a Statement of Affairs and has failed to cooperate at all with the Trustee in the administration of the estate.
Due to the bankrupt’s failure to lodge a Statement of Affairs, the Trustee has had to make a number of enquiries to ascertain and identify the creditors of the bankrupt estate.
The creditors who have lodged a proof of debt in the administration of the bankrupt estate are:
(a)Deputy Commissioner of Taxation in the amount of $107,814.96; and
(b)Westpac Banking Corporation in the amount of $2,945.62.
The creditors have approved the Trustee’s remuneration, including to finalisation of the bankrupt estate.
The Trustee has achieved recoveries totalling $639,256.63 in the bankrupt estate.
DETERMINATION
The Trustee wishes to finalise the administration of the bankrupt’s estate. The Trustee is unable to do so as the bankruptcy cannot be finalised unless the bankrupt files a Statement of Affairs.
The Court is satisfied that:
(a)All reasonable steps have been taken by the Trustee to notify the bankrupt of the requirement to provide a Statement of Affairs and of this application;
(b)The bankrupt has failed to file a Statement of Affairs;
(c)The failure to file a Statement of Affairs has resulted in a delay in the administration of the bankrupt estate;
(d)All reasonable steps have been taken to investigate who the creditors are, and the creditors are yet to be paid;
(e)Save for a distribution of a dividend to the creditors who have proved their debts, the administration of the bankrupt estate is all but complete; and
(f)The Trustee has incurred costs in bringing this application.
Having regard to the evidence filed and the submissions made, the Court is satisfied that it should exercise its discretion in favour of the Trustee.
As such, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 14 August 2025
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