Van- Minnen ( nee Huson ) ex parte Harrison

FEDERAL COURT OF AUSTRALIA

Van- Minnen ( nee Huson ) ex parte Harrison [1999] FCA 43

BANKRUPTCY – discharge of  bankrupt – debtor’s statement of affairs – no record of filing – record of subsequently dated statement – whether Court can make a declaration that statement filed sufficient for purpose of provision relating to discharge by effluxion of time.

Bankruptcy Act 1966 (Cth) ss30, 33, and 149

Nilant v Macchia (1997) 148 ALR 329 followed
Re Rhode (1993) 42 FCR 149 discussed
Re Ellis; Ex parte Jefferson (Drummond J, unreported, 17 February 1995) cited
Sofia v Pattison and Official Receiver (NSW) (Finkelstein J, unreported, 20 October 1997) distinguished

VAN-MINNEN (nee HUSON)  EX PARTE HARRISON

WG 7102 OF 1998

R D NICHOLSON J

3 FEBRUARY 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 7102 OF 1998

BETWEEN:	PENELOPE VAN-MINNEN ( NEE HUSON) Applicant
EX PARTE	GEOFFREY ORMOND HARRISON ( AS TRUSTEE OF THE ESTATE OF PENELOPE VAN-MINNEN)
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	3 FEBRUARY 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be refused.

2.There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 7102 OF 1998

BETWEEN:	PENELOPE VAN-MINNEN ( NEE HUSON) Applicant
EX PARTE	GEOFFREY ORMOND HARRISON ( AS TRUSTEE OF THE ESTATE OF PENELOPE VAN-MINNEN)
JUDGE:	R D NICHOLSON J
DATE:	3 FEBRUARY 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant seeks two orders. The first is an order that the filing of her statement of affairs (“the Statement”) with the Trustee be recognised for the purposes of s 54 of the Bankruptcy Act 1966 (Cth) (“the Act”). The second is that the time limited by subs 149(3) of the Act for the period of the bankruptcy in this matter be abridged to a day after the date of filing the Statement with the Trustee. It would appear that the intention is that the second order be made pursuant to subs 149(4) in that subs 149(3) applies only to bankruptcies occurring before 1 July 1992.

2. Subsection 54(1) provides:

   “54. (1)          Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:

   (a)make out and file in the office of the Official Receiver for the District in which the sequestration order was made a statement of his or her affairs; and

   (b)furnish a copy of the statement to the trustee.

   Penalty:  5 penalty units.

   … ”

3. The applicant’s bankruptcy commenced on 25 September 1995.

4. The statement of affairs which the applicant wishes to have recognised as being filed with the Registrar in Bankruptcy on 23 October 1995 was given to her trustee on that date.  The applicant’s trustee has filed an affidavit in support of this application.  The trustee states that he…