Weston and Inspector-General in Bankruptcy - [2022] AATA 1252

Weston and Inspector-General in Bankruptcy [2022] AATA 1252 (17 May 2022)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/0705
Re:Paul Weston
APPLICANT

AndInspector-General in Bankruptcy
RESPONDENT

AndSalim Mehajer
OTHER PARTY

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:17 May 2022
Place:Sydney

The Respondent’s decision to confirm the Trustee’s decision to file the notice of objection is affirmed.
............................................[sgd].........................
Mrs J C Kelly, Senior Member
CATCHWORDS
BANKRUPTCY – trustee’s objection to discharge – where special grounds specified in objection – failure to comply with request to provide written information about the bankrupt’s property, income or expected income – failure to pay an amount that the bankrupt was liable to pay under s139ZG – where there is sufficient evidence to support the existence of a special ground – where bankrupt does not have a reasonable excuse for the conduct or failure – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act (1975) (Cth) ss 37, 43
Bankruptcy Act 1966 (Cth) ss 139T, 139ZA, 139ZG, 149, 149B, 149C, 149D, 149K, 149Q
CASES
Jones and Inspector-General in Bankruptcy [2018] AATA 3260
Rimanic and Inspector-General in Bankruptcy [2010] AATA 875
Stolyar and Inspector-General in Bankruptcy [2021] AATA 3398
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
17 May 2022
Introduction

This case is about whether the period of bankruptcy of Mr Salim Mehajar (the Other Party) should be extended. The period of bankruptcy was due to end on 5 May 2021.[1] The effect of the reviewable decision is that the bankruptcy will end on 4 May 2026. The relevant legislation is the Bankruptcy Act 1966 (Cth) (the Act).
[1] Pursuant to s 149(4) of the Act.
The Applicant, the trustee in bankruptcy, lodged a written notice of objection to discharge from bankruptcy on 11 November 2020 pursuant to section 149B of the Act under the grounds specified in paragraphs 149D(1)(f) and 149D(1)(d) of the Act (Objection).
The ground in paragraph 149D(1)(f) is that the bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG of the Act. The ground in paragraph 149D(1)(d) was that the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request.
On 13 November 2020, the Other Party applied to the Respondent, the Inspector-General in Bankruptcy, pursuant to section 149K of the Act requesting a review of the Objection on all grounds.[2]
[2] T5.
On 12 January 2021, a delegate of the Respondent decided to confirm the ground of objection contained in paragraph 149D(1)(f) (the confirmed ground) and to cancel the ground of objection in paragraph 149D(1)(d) (the cancelled ground) (the reviewable decision). As stated in the reviewable decision, the effect of the decision pursuant to subsection 149A(2) of the Act was that the Other Party will remain bankrupt until 4 May 2026.
The Applicant applied to the Tribunal for a review of the reviewable decision pursuant to section 149Q of the Act, specifically in respect of the cancelled ground, that is that Other Party failed to provide information to the trustee when requested in writing to do so.
The Other Party applied to be made a party to the proceedings. He sought review of the confirmed ground.
It is relevant that the Other Party had requested that the Respondent review the Applicant’s income contribution assessment dated 28 July 2020, but no decision was made and the matter was not before the Tribunal.
Matters raised at the beginning of the hearing
At the beginning of the hearing, the following matters were raised.
The Other Party objected to the finding in respect of the cancelled ground being reviewed. He wanted only the confirmed ground reviewed. However, the Applicant specifically applied for review in respect of the cancelled ground. Consequently, both grounds were raised by the parties to be considered on the review.
There was a legal issue between the Applicant and the Respondent about the Tribunal’s jurisdiction. As Mr Hutchins for the Respondent submitted, the only decisions the Respondent can make under the Act are to cancel or confirm the trustee’s decision to lodge a notice of objection. There is no separate decision in respect of a ground of objection. Consequently, in this case the Tribunal can only make a decision pursuant to section 43 of the Administrative Appeals Tribunal Act (1975) (Cth) to affirm, vary, set aside and substitute or remit for reconsideration with directions or recommendations, the Respondent’s decision under subsection 149N(3) of the Act to confirm the Applicant’s decision to file the Objection.
Ultimately, both the Applicant and Respondent were asking the Tribunal to affirm the reviewable decision. The Other Party is seeking to have the reviewable decision set aside and the decision substituted that the trustee’s Objection be cancelled.
Mr Hutchins stated near the beginning of the hearing that in accordance with the Respondent’s duty, the Respondent had a better understanding of the issue in respect of the cancelled ground, intended to work with the Tribunal, and, certain material having come to light, it may not have had reasons for cancelling that ground.
The proper approach to applying section 149N of the Act in this case
The Applicant and the Respondent differed as to the proper approach to be followed when applying section 149N of the Act which provides:
(1) On a review of a decision, if the Inspector‑General is satisfied that:
(a) the ground or grounds on which the objection was made was not a ground or were not grounds specified in subsection 149D(1); or
(b) there is insufficient evidence to support the existence of the ground or grounds of objection; or
(c) the reasons given for objecting on that ground or those grounds do not justify the making of the objection; or
(d) a previous objection that was made on that ground or those grounds, or on grounds that included that ground or those grounds, was cancelled;
the Inspector‑General must cancel the objection.
(1A) An objection must not be cancelled under subsection (1) if:
(a) the objection specifies at least one special ground; and
(b) there is sufficient evidence to support the existence of at least one special ground specified in the objection; and
(c) the bankrupt fails to establish that the bankrupt had a reasonable excuse for the conduct or failure that constituted the special ground.
For this purpose, special ground means a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).
(1B) In applying subsection (1A), no notice is to be taken of any conduct of the bankrupt after the time when the ground concerned first commenced to exist.
(2) The cancellation does not take effect until:
(a) the end of the period within which an application may be made to the Administrative Appeals Tribunal for the review of the decision of the Inspector‑General; or
(b) if such an application is made—the decision of the Tribunal is given.
(3) If the Inspector‑General is not satisfied as mentioned in subsection (1), the Inspector‑General must confirm the decision.
(Emphasis in original)
Both the cancelled and confirmed grounds in this case are special grounds pursuant to subsection 149N(1A). Three cases were referred to where the Tribunal had considered the proper approach pursuant to section 149N of the Act when special grounds were in issue pursuant to subsection 149N(1A): Rimanic and Inspector-General in Bankruptcy [2010] AATA 875 (Rimanic), Stolyar and Inspector-General in Bankruptcy [2021] AATA 3398 (Stolyar); and Jones and Inspector-General in Bankruptcy [2018] AATA 3260 (Jones).
In summary, in Rimanic, the Tribunal held that the proper approach was first to apply the criteria in subsection 149N(1) to the facts of the case and, then if applicable, apply the criteria in subsection 149N(1A). The Applicant contended that that approach was correct and, in this case, the Tribunal will not get to the issue whether the Other Party has a reasonable excuse pursuant to paragraph 149N(1A)(c).
In Stolyar and Jones, the Tribunal proceeded directly to consider whether the criteria for cancelling an objection under subsection 149N(1A) were satisfied rather than considering the criteria in subsection 149N(1) first. The Respondent contended that approach was preferable to the approach taken in Rimanic.
In principle I respectfully adopt the approach followed in Stolyar and Jones, but before considering the application of subsection 149(1A), I make the following observations.
Section 149C of the Act sets out what is to be included in a trustee’s notice of objection. Paragraph 149C(1)(c) requires that the notice state the reasons of the trustee for objecting to the discharge on that ground or grounds. However, subsection 149C(1A) provides that paragraph 149C(1)(c) does not apply to a ground specified in paragraphs 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).
In this case the grounds of objection are paragraphs 149D(1)(d) and (f) and therefore paragraph 149C(1)(c) does not apply: the trustee did not have to give reasons for objection to the discharge, and in this case specifically referred to subsection 149C(1A) as the reason for not doing so.
Returning to section 149N, it follows that paragraph 149N(1)(c) is not relevant to the consideration of those grounds because the trustee does not have to give reasons. Considering the other grounds in subsection 149N(1), paragraph 149(1)(a) is not satisfied in this case because both grounds of objection to discharge are specified in subsection 149D(1). Paragraph 149N(1)(d) is not satisfied because there has been no previous objection made on either ground.
That leaves the test in paragraph 149N(1)(b) which is a negative test: whether the Inspector-General is satisfied that there is insufficient evidence to support the existence of the ground or grounds of objection. If the Inspector-General is so satisfied, the objection must be cancelled.
The test in paragraph 149N(1A)(b) is stated positively, that there is sufficient evidence to support the existence of at least one special ground specified in the objection. Effectively both provisions require a finding as to the sufficiency of the evidence. In this case, where both grounds are special grounds and subsection 149(1A) applies, there is a limit on the information that may be taken into account pursuant to subsection 149N(1B): no notice is to be taken of any conduct of the bankrupt after the time when the ground concerned first commenced to exist.
In this case both grounds are special grounds pursuant to subsection 149N(1A). The appropriate course is to consider the sufficiency of the evidence in respect of each ground separately as required by paragraph 149N(1A)(b), and if there is sufficient evidence, whether the Applicant had a reasonable excuse pursuant to paragraph 149N(1A)(c). The Other Party must succeed on both grounds to achieve the outcome he seeks. If he is unsuccessful, the Objection must not be cancelled If he is successful, it will be necessary to consider the application of paragraph 149N(1)(b).
The issues to be determined
The issues to be determined are:
(a)Is there sufficient evidence to support the existence of at least one special ground specified in the Objection?
(b)If the answer to (a) is yes, has the Other Party failed to establish that he had a reasonable excuse for the conduct or failure that constituted the special ground?
(c)If the Other Party has established a reasonable excuse for the conduct or failure that constituted the special ground, paragraph 149N(1)(b) must be considered.
As the Applicant and Respondent agreed that the confirmed ground satisfied the relevant criteria and the Other Party did not, I will address that ground first. If the Other Party is unsuccessful in respect of this ground, I must affirm the Respondent’s decision. That would be sufficient to dispose of this matter, but the parties agreed that I should address both grounds in any event. If the Other Party were successful in respect of the confirmed ground, I would have to consider the cancelled ground.
The documents before the Tribunal
Apart from the documents provided to the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1979 (Cth) (the T documents), the Tribunal had the following documents:
·The Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SoFIC);
·The Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SoFIC) and Annexure Bundle;
·The Applicant’s Outline of Supplementary Submissions regarding section 149N;
·The Other Party relied upon:
·     a 17 page Outline of Contentions provided under cover of a letter dated 9 August 2021 and his affidavit of the same date (affidavit);
·     a report of Dr Antony Henderson dated 9 September 2020 which had been provided as an annexure to the Other Party’s affidavit of 23 March 2021 upon which he did not rely;
·     a letter from Ahmad Gharib, Director of Insurance Corp NSW Pty Ltd dated 16 August 2021.
The Other Party’s position on the confirmed ground
The Other Party did not dispute at any time that he has not paid the assessed income contributions set out in a notice from the Applicant dated 28 July 2020 that was addressed to him and sent to an email address. The notice advised both:
1)His liability to contribute the assessed amount was not affected by the making of an application for review to the Respondent; and
2)Non-payment was a ground of objection pursuant to paragraoh149(1)(f) of the Act.
It also set out a Notice under section 139T in respect of making an application for hardship in meeting the assessed contribution and a Notice under section 139ZA about the right to apply for review by the Inspector-General, including the 60-day time limit for doing so.
A Schedule of Payments stated that his total Compulsory Contribution liability was $15,830.37 and set out 12 monthly payments. Relevantly, the first four were each for the sum of $1,978.80 and were due on 11 August 2020, 11 September 2020, 11 October 2020 and 11 November 2020. Instructions for payment were set out.
The Notice of objection to discharge was dated 11 November 2020. The Other Party applied to the Respondent for review on 13 November 2020. He stated the following in respect of the confirmed ground:
I am not aware of any income contribution currently due and payable and my options – following the fact that I am financial (sic) unable to make any further payments.
…
Finally, please confirm what income contribution the trustee is referring to when he says circa $5.5K is currently overdue.
Even if the amount was payable, I am not financial (sic) stable to pay this amount. Please provide evidence to why you say this is due and payable and options available to me.
As I understand, the Inspector General is reviewing my income assessment - reported by the trustee.
The Other Party’s position in his Outline of Contentions, and affidavit dated 9 August 2022, was as follows.
He quoted the notification in the Applicant’s Notice of Contribution Assessment dated 28 July 2020 that if dissatisfied with the decision, he could request the Respondent to review the decision under section 139ZA of the Act within 60 days.
He submitted that since he lodged his request for review under section 139ZA, the income contribution should not be deemed as payable until the Inspector-General makes such a finding. He did not give the date on which that document was lodged or provide a copy of it. Neither the date nor the document was in evidence.
The Other Party accepted that he had received the Applicant’s 28 July 2020 notice. He set out an extract from his affidavit that stated that he had written to the Respondent to review the decision “as I believed I was entitled to” and was contacted by a staff member from the Respondent’s office who advised that the income contribution was being assessed. It was his understanding that the income contribution liability was not due and payable by him while the review was underway.
He submitted that the Respondent’s letter to him dated 12 January 2021 “no doubt leaves Mr Mehajer believing that he Income-contribution decision by the Inspector-General has not yet been determined”. He quoted the following:
Note on contribution ground of objection: As you would be aware there is an application for a review of the trustee’s income assessment currently being dealt with by the IG The outcome of this review may have a material impact on whether the objection ground in paragraph 149D(1)(f) can be sustained. Depending on the outcome of the income review, the IG may decide to conduct a review of this ground of objection again, relying on the power to conduct reviews on his own initiative contained in paragraph 149K(1)(A) of this Act. (Emphasis in original.)
He repeated that the payment “should not be payable” while he was awaiting the Respondent’s “conclusive decision based on” his defence and should not sustain a further extension of his bankruptcy for non-payment when the income contribution was under review. Further, he disputed that the assessed level of income contribution is payable by him.
He gave various reasons why the assessed liability was incorrect. He submitted that if it were accepted that the income contribution should be paid by him, it should not warrant an extension of his bankruptcy but there should be a reasonable payment plan to meet his ability to pay. If the payment plan were not accepted, and the amount was payable by the Other Party prior to his bankruptcy expiring, he claimed that he has still made an effort to raise the assessed amount from a business colleague. A business colleague provided a letter dated 16 August 2021 undertaking to the Tribunal that he would pay the Applicant the outstanding income contribution liability “if it means that Mr Mehajer sequestration order is annulled”.
The Other Party addressed other matters that are not relevant, such as the impact on third parties if his bankruptcy were extended and a claim that the Applicant is interacting with a company to keep the Other Party bankrupt.
The Other Party emphasised that his intention or knowledge must be considered, not that of the Applicant, Respondent, or some hypothetical person.
Finally, the Other Party submitted that the impact of the current pandemic should be considered, and that the extension of the bankruptcy would exacerbate pressure on him, his family and investors.
Consideration of the confirmed ground
There is no dispute that the Other Party has not paid the contributions. The 28 July 2020 notice stated:
Your liability to contribute the assessed amount is not affected by the making of an application for review by the Inspector General of the assessed amount under Section 139ZA provides of the Act. Non-payment of the Compulsory Liability is grounds for objection pursuant to Section 149(1)(f) of the Act.
The notice was issued under section 139ZG of the Act. Paragraph 139ZG(2)(b) provides that the liability to pay a contribution is not affected by a request to the Inspector for a review of the decision of the trustee to make the assessment. There is no basis for the Other Party’s claim that he was not liable to pay while there was a request for review before the Inspector General.
Therefore, there is sufficient evidence to support the existence of a failure to pay income contributions
The next question is, has the Other Party established a reasonable excuse for the non-payment?
The Other Party did not maintain that he had been unaware that any income contribution was currently due and payable in his affidavit and Outline of Contentions. He accepted that he had received the Applicant’s Notice of Contribution of assessment dated 28 July 2020 and quoted from it, as set out above. He applied to the Respondent for review. No decision had been made.

That the Other Party had applied for review to the Respondent was accepted. Based on the Other Party’s claim that he applied for review “in time”, that is within 60 days, and the statement in the Respondent’s SoFIC that the Other Party corresponded with the Respondent about the contribution assessment “at the end of September 2020”, I infer that the application was made just before the 60-day limit, 26 September 2020.
The email from the Respondent to the Other Party dated 3 December 2020 refers to the review application. He said he did not receive it because he was in custody.
At the hearing I understood the Other Party to maintain that he had never been advised that he was liable to pay and had never received the notice dated 28 July 2020.
He did not refer to the email sent to him by the Applicant on 23 September 2020 that referred to the Income Contribution Reassessment dated 28 July 2020 and noted that “he was yet to pay the first two instalments under the reassessment” and directing him to pay the arrears of $3,957.60 immediately to his bankrupt estate administration account. It listed the BSB, account number and name. The email was sent to the same email address as the 28 July 2020 had been. The email did not provide information about applying to the Respondent for review of the contribution assessment.
That the Other Party applied to the Respondent for review of the contribution assessment “within time” and relies on that fact to claim that he believed he did not have to pay while the review was underway, contradicts the evidence that he had never received it.
At the hearing, he claimed that a member of the Respondent’s staff told him that he did not have to pay while the review was underway. There was no corroborative evidence. I do not accept that occurred. I accept he was told at some time that the review was underway.
I note that the Respondent pointed to the email from the Respondent to the Other Party dated 3 December 2020 which set out documents the Other Party had to provide by close of business on 10 December 2020 for the purpose of the contribution assessment review and noted that:
A review will only be undertaken on the condition that the above requested material is provided.
At least by that date, the Other Party had not provided all necessary material to the Respondent for the purpose of that review and therefore the review was unable to be conducted up to that time.
I do not accept that the statement in the decision made on 12 January 2021 referred to in [36] supported the Other Party’s claimed belief. In any event, that was two months after the Objection had been lodged and the Other Party had failed to make six payments.
The Other Party said that he would have entered into a payment plan, but he made no attempt to do so until he filed in these proceedings the letter from a business colleague dated 16 August 2021, referred to at [38]. He did not request an extension of time to pay or make a hardship application.
I did not understand the Other Party to rely on a report from Dr Antony Henderson in respect of this ground, but I will address it. Dr Henderson, consultant forensic psychiatrist, prepared a report dated 9 September 2020 at the request of the Other Party’s then solicitor for the purpose of criminal proceedings arising from two counts of Pervert the course of justice relating to a sworn affidavit and providing evidence under oath. The doctor’s opinion was based on information and documentation provided by the solicitor, information about the alleged offending provided by the Other Party, a mental health history provided by the Other Party, and a Mental State Examination. Dr Henderson diagnosed Bipolar II disorder, which had been formally diagnosed by a forensic psychiatrist in early 2018 and confirmed by another forensic psychiatrist and a counselling psychologist.
The Other Party made a general claim that he suffers depressive downfalls that last several weeks that make him feel worthless and unable to physically move. He did not claim that this condition led to his belief that he did not have to pay the contribution while the Respondent was reviewing the assessment.
Dr Henderson provided an opinion in relation to the impact of the diagnosed condition on the Other Party’s behaviour in respect to the charges that had been laid. The doctor does not address the issues in this case or the Other Party’s behaviour relating to either of the grounds, including his claimed belief in respect of this ground. I am not satisfied that this evidence establishes that he had a reasonable excuse for failing to pay the contributions.
At highest, the Other Party’s claim is that he had a genuine belief that he did not have to pay the contribution while the review was before the Inspector General.
There was no basis for that belief because he had received a copy of the notice of 28 July 2020 which set out the amount owing and a schedule for payments, and warned that non-payment was a ground of objection and that a request for review did not affect his liability to pay the contribution. He applied for review to the Inspector-General as the notice had specified.
The other matters the Other Party raised in respect of this ground are not relevant to the issues I have jurisdiction to consider, including the letter from his business colleague who wrote that he would pay the Applicant the outstanding income contribution liability.
The Other Party has failed to establish that he had a reasonable excuse for not paying the contributions.
Pursuant to subsection 149N(1A) the objection must not be cancelled under subsection 149N(1). The reviewable decision must be affirmed. That finding is sufficient to dispose of this matter. However, the parties were of the view that I should address both grounds of objection.
The Other Party’s position on the cancelled ground
The Other Party claims that he has cooperated and done all he could to provide the documents the Applicant requested and to maintain communication with the Applicant because the finalisation of his bankruptcy is in his best interest.
He claimed that he had already provided everything that he had before the request was made on 22 September 2020. In addition to the correspondence after that time, which is set out below, the Other Party referred to searches carried out simultaneously by the Applicant pursuant to warrants of the Other Party’s residential property, the offices of his solicitor and accountant, and the offices of work colleagues and family members. The Applicant confiscated all books and records including data from electronic devices. After that, he strongly believed the Applicant had possession of all his books and records.
The Other Party also claims that he was unreasonably denied an extension of time within which to provide information that he had already provided because he was ill. He had to access his archives to collate that material. It was not out of the ordinary to carry out a task in the last few weeks before it was due.
He raised other matters which are not relevant to my consideration including hardship he has suffered as a result of the bankruptcy, false allegations made by the Applicant, and the merits of the contribution assessment.
Consideration of the cancelled ground
The Applicant and Respondent argued that no correspondence from the Other Party after 11 November 2020 may be taken into account pursuant to subsection 149N(1B). For the purposes of this consideration, I will refer to documents provided after 11 November 2020.
The Other Party’s position requires me to consider first, whether there is sufficient evidence to support the existence of the cancelled ground, and if so, whether he has established a reasonable excuse for the conduct or failure that constituted the cancelled ground.
Following are my findings of fact on this issue.
On 20 March 2018, the Other Party became bankrupt pursuant to a Sequestration Order made by the Federal Circuit Court and the Applicant was appointed as Trustee of the bankrupt estate.
On or around 26 April 2018, the Other Party filed an affidavit dated 26 April 2018 in Federal Court proceedings. A supporting affidavit dated 24 April 2018 was filed by his then solicitor. The affidavits of the Other Party and his then solicitor stated that the Other Party has an interest in various companies, real property, debtors, caveatable interests and luxury items.
On or around 3 May 2018, the Other Party filed a Statement of Affairs (SOA), which was accepted by the Official Receiver. There were several sections of the SOA, including but not limited to sections 23, 24, 28, 29, 30, 35, 36, 37, 38, 40, 41, 42, 43 and 44, which were incomplete and marked as “TBA” or “to be provided”.
During the course of the Other Party’s bankruptcy, the Applicant required the Other Party to provide information relating to his examinable affairs, including but not limited to information that was to be advised or provided according to his SOA and/or assets that he purportedly has an interest according to his and his then solicitor’s affidavits filed in the Federal Court proceedings dated 26 April 2018 and 24 April 2018. The Applicant previously directed the Bankrupt to provide written information regarding his examinable affairs on several occasions, including on 2 May 2018, 18 July 2019, and 3 October 2019.
On 15 September 2020, the Other Party sent an email to the Applicant:
Could you please advise if you believe that I am holding any further documents, books or records?
I would like to make it clear that I have given the trustee absolutely everything I have.
I have nothing further to Offer or produce.
If there is anything specific you need form me (which I do not have), I can only assist you in trying to source and collate such material (if any requested).
I however believe the several affidavits previously filed in courts have inevitably forced me to collate and generated everything I have and or ever existed.
I note that the email was sent from the same address as that to which the 28 July 2020 notice had been sent.
On the same day, the Applicant’s office advised the Other Party that his bankruptcy file would be reviewed, and the office would advise if there were any further information/documentation required from him.
On 22 September 2020, the Applicant wrote to the Other Party and requested written information about his property, income and expected income. The Applicant set out the issues that he had failed to address since the commencement of his bankruptcy. The deadline for response was 23 October 2020. Notice was given that failure to respond may lead to an objection to his discharge being lodged pursuant to paragraph 149D(1)(d) of the Act.
On the same day, the Other Party responded. He stated that he would be in a position to respond by 5 October 2020. He asked for advice about what he needed to do to sell a property. He queried advice given to his business associate about the effect of “terminating the trustee” and sought “urgent” answers to questions in his “last few emails” as he had already placed “my Federal Court proceedings on hold - i.e., proceedings to terminate the trustee” because of the support of his creditors.
On 24 September 2020 the Other Party sent a further email response to the Applicant’s office, attaching two affidavits filed in 2020 New South Wales Court proceedings he was taking against a company. His affidavits were sworn on 22 September 2020. He stated that he believed that he had already provided the Applicant with everything that was available to him. He stated that he was required to subpoena the balance of the documents and asked for assistance to do so.
On 30 September 2020 the Applicant wrote to the Other Party and advised that the response was inadequate, and a response was still expected by 23 October 2020. The letter specified particular documentation it had requested which had not been provided in respect of a Deed of Release. The letter reminded him that a failure to adequately respond is a ground to objection to his discharge from bankruptcy pursuant to paragraph 149D(1)(d) of the Act.
In an email dated 30 September 2020, the Other Party advised the Applicant that he had previously advised that he would be in a position to respond to the 22 September 2020 email by 5 October 2020 despite stating that he was to respond by 23 October 2020.
Moving forward, I am going to assume I have not sent you any documents and I will answer your letter in full detail and attach every single piece of document I have -considering you are fresh pair of eyes looking at my estate.
The Other Party sought advice about what he was required to do with respect to the auction of a property.
On 23 October 2020, upon the Other Party’s request on the same day, the Applicant granted an extension of time to respond. The new deadline was 6 November 2020. The Other Party referred to having a “great deal of work before” him, in particular, 2020 Supreme Court proceedings. He had sought an extension for five working days. He was granted ten.
After the 6 November 2020 deadline, on 9 November 2020 the Other Party wrote to the Applicant requesting a further extension until 12 November 2020. He was “not feeling to (sic) well to compete the great deal of work required”. No medical reports were provided.
On the same day, the Applicant refused the request and advised that no further extensions of time would be given, noting that a period of six weeks was “more than adequate”.
On 11 November 2020, the Applicant filed the Objection and notified the Other Party that if the previously requested information and documents were produced, consideration would be given to withdrawing the Objection.
On 12 November 2020, the Other Party contacted the Applicant’s office by email regarding the 2020 Federal Court proceedings. He advised that he “was not feeling well (absolutely unfit to work) leading up to the due date i.e. 6 November 2020” and advised that he believed he would require further spine surgery. He advised that he would provide a copy of a medical certificate evidencing his illness.
On 13 November 2020 he advised the Applicant’s office by email that he was unfit and feeling unwell, which was the reason for his 9 November 2020 request for an extension of time. He advised that he had a medical certificate which was available to the Applicant upon request. He provided documents purportedly to comply with the Applicant’s 22 September 2020 letter and noted that “a great deal of the information that [the Applicant] has requested was previously provided to your office”.
On the same day, the Other Party applied for review of the Objection. For the purpose of that review, he provided three medical certificates.
He attended Dr Mohiuddin on 12 November 2020, the day after the Objection was lodged. The doctor reported:
This is to certify that Mr Salim Mehajer … has attended for treatment today.
As per history of illness, he was (sic) reportedly been sick since 4/11/20.
The Other Party also provided a medical report and a medical certificate from Dr Mark Winder, a neurosurgeon and spine surgeon. The report of 8 July 2020 reported a review of the Other Party on that day. Dr Winder reported a history of back problems culminating in surgery in 2016 with good results, a six-week flare-up of symptoms, and severe right sciatica which had developed two weeks earlier. He was proposing surgery on a disc protrusion at L5/S1 the following week and stated:
I understand that he has court requirements, but in his current state, his attendance will need to be postponed until approximately 2 weeks post-surgery.
In a Medical Certificate dated 24 July 2020, Dr Winder certified that the Other Party “is unfit for normal working duties from 15 July 2020 to the 29 July 2020 due to having lumbar surgery”.
Other conduct of the Other Party before 11 November 2020 is relevant. On 1, 6, 13 and 15 October 2020, he contacted the Applicant’s office by email about his real property interests at two addresses which are vested in the Applicant and proposed their sale.
On 7 October 2020, he filed two applications in the Federal Court of Australia supported by two extensive affidavits. One application against 12 respondents including the Applicant was to have set aside two deeds of release. The other application against six respondents including the Applicant sought to have set aside another deed of release. Extensive unsworn affidavits were provided in support.
On 22 October 2020 the Other Party appeared in the Supreme Court proceeding he had launched. In an email to the Applicant’s office that same day, he wrote that he would be lodging a Notice of Motion to Stay those proceedings and would begin new proceedings the next day in relation to certain deeds of release in the Supreme Court rather than the Federal Court.
Is there sufficient evidence to support the existence of the cancelled ground?
The Other Party’s claims are two-fold and contradictory. He maintains that he has provided, directly or by way of search warrants, all documentation and information he has. He claims that he would have to use subpoenas to obtain other material. At the same time, he stated that he was going to provide more material, sought extensions of time within which to do so, and eventually did provide material which he maintained had already been provided. Doing the best I can, I understood the Other Party’s position was that he provided previously provided information to demonstrate that he was doing his best to co-operate with the Applicant.
The only issue between the Applicant and Respondent was whether the Other Party had a reasonable excuse for his non-compliance.
The evidence of the Applicant is persuasive. The Other Party has not provided the information requested. I do not accept the Other Party’s implied and direct claims that the Applicant has treated him unreasonably or unfairly in this matter. The dispute about the provision of information was longstanding. Evidence from the Other Party and his solicitor disclosed significant assets and details which gave rise to requests. The Other Party’s claims were contradictory and unpersuasive. I am satisfied that there is sufficient evidence to support the existence of the cancelled ground of objection pursuant to paragraph 149N(1A)(b) of the Act
Does the Other Party have a reasonable excuse for failing to provide the requested information?
The Other Party had been requested to provide information over a long period of time prior to 22 September 2020. In response to the request on that date, he claimed that he would provide the information by 5 October 2020 and was later granted two extensions, the last for a week longer than he had requested. He did not seek the last extension until after the deadline. He was made aware sufficiently of the consequences of not providing the information requested. He initiated two court proceedings not long after receiving the 22 September 2020, was involved in another court proceeding, and was concerning himself with his real property interests in the period given to comply with the request.
That the Other Party spent time on those other matters in October 2020 demonstrates that he was not prioritising complying with the Applicant’s request.
I am not satisfied that the Other Party had a reasonable excuse for failing to provide the requested information.
If behaviour after 11 November 2020 were considered, that would not assist the Other Party. His evidence about his health and the medical evidence he provided is not persuasive.
I give no weight to the evidence of Dr Mohiuddin. No information was given about the symptoms suffered or the impact on the Other Party’s capacity to gather and provide documents to the Applicant, or treatment provided. The Other Party did not report spinal symptomatology. He simply reported being sick.
According to the Applicant’s inquiries with Dr Winder’s rooms, the Applicant did not attend post-operative appointments. Dr Winder’s evidence does not assist in this case because it provides no opinion about the Applicant’s back condition beyond 29 July 2020.

The Other Party’s claimed belief that he would need spinal surgery is not supported by medical evidence.
For the reasons given in respect of the confirmed ground, the report of Dr Henderson does not assist the Other Party. In addition to the doctor not addressing the issues in this case, the Other Party did not claim that the delay in providing documents was a consequence of suffering depression. Such an explanation is also not consistent with his claim that such depressive events continue for several weeks. He provided additional documents within seven days of the due date and four days of advising that he was unwell.
The Other Party has not established that he had a reasonable excuse for the conduct or failure that constituted the special ground.
Pursuant to subsection 149N(1A) of the Act, the objection must not be cancelled under subsection 149N(1) of the Act. The reviewable decision must be affirmed.
Conclusion
In this case, under subsection 149N(1A), the objection must not be cancelled under subsection 149N(1) because the objection specified two special grounds and there is sufficient evidence to support the existence of both and, and in respect of both special grounds, the bankrupt, the Other Party, has failed to establish that he had a reasonable excuse for the conduct or failure that constituted the special ground.
Decision
The Respondent’s decision to confirm the Trustee’s decision to file the notice of objection is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]........................................
Associate
Dated: 17 May 2022

Date of hearing: 24 November 2021

Applicant: By video

Solicitors for the Respondent: C Hutchins, Australian Government Solicitor

Other Party: By video

Date of hearing:	24 November 2021
Applicant:	By video
Solicitors for the Respondent:	C Hutchins, Australian Government Solicitor
Other Party:	By video