FEDERAL COURT OF AUSTRALIA

Official Trustee in Bankruptcy, in the matter of Street v Street

[2000] FCA 216

BANKRUPTCY – failure of bankrupt to file statement of affairs with Registrar – statement of affairs provided to office of Official Trustee and held by person who was agent of both the Trustee and the Official Receiver – whether an irregularity capable of being excused pursuant to s 306(1) of the Bankruptcy Act 1966 (Cth)

Tsingaris v Official Receiver in Bankruptcy [1999] FCA 1389 followed

Nikoglou v Official Receiver in Bankruptcy [2000] FCA 8 followed

IN THE MATTER OF JUNE SHEILA STREET

OFFICIAL TRUSTEE IN BANKRUPTCY v JUNE SHEILA STREET

N 8249 OF 1999

IN THE MATTER OF COLLEEN MAY HALLS

OFFICIAL TRUSTEE IN BANKRUPTCY v COLLEEN MAY HALLS

N 8251 OF 1999

IN THE MATTER OF FRANCIS TERENCE HALLS

OFFICIAL TRUSTEE IN BANKRUPTCY v FRANCIS TERENCE HALLS

N 8252 OF 1999

IN THE MATTER OF SIMONE ALICIA HALLS

OFFICIAL TRUSTEE IN BANKRUPTCY v SIMONE ALICIA HALLS

N 8254 OF 1999

IN THE MATTER OF STANLEY STREET

OFFICIAL TRUSTEE IN BANKRUPTCY v STANLEY STREET

N 8255 OF 1999

SACKVILLE J

1 MARCH 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                        N 8249 OF 1999

IN THE MATTER OF JUNE SHEILA STREET

JUDGE:                      SACKVILLE J

DATE OF ORDER:  1 MARCH 2000

WHERE MADE:       SYDNEY

THE COURT DECLARES THAT:

The statement of affairs signed by the respondent on 8 September 1995, and which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act 1966 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                        N 8251 of 1999

IN THE MATTER OF COLLEEN MAY HALLS

THE COURT DECLAREST THAT:

The statement of affairs signed by the respondent on 10 September 1995, and which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act 1966 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                        N 8252 of 1999

IN THE MATTER OF FRANCIS TERENCE HALLS

THE COURT DECLARES THAT:

The statement of affairs signed by the respondent on 10 September 1995, and which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                        N 8254 of 1999

IN THE MATTER OF SIMONE ALICIA HALLS

THE COURT DECLARES THAT:

1.         Notwithstanding the absence of a signature on the respondent’s statement of affairs, it was filed in compliance with s 54(1) of the Bankruptcy Act 1966 (Cth).

2.         The statement of affairs of the respondent, which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                        N 8255 of 1999

IN THE MATTER OF STANLEY STREET

THE COURT DECLARES THAT:

The statement of affairs signed by the respondent on 8 September 1995, and which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act 1966 (Cth).

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

N 8249 of 1999:

IN THE MATTER OF JUNE SHEILA STREET

N 8251 of 1999:

IN THE MATTER OF COLLEEN MAY HALLS

N 8252 of 1999:

IN THE MATTER OF FRANCIS TERENCE HALLS

N 8254 of 1999:

IN THE MATTER OF SIMONE ALICIA HALLS

N 8255 of 1999:

IN THE MATTER OF STANLEY STREET

REASONS FOR JUDGMENT

1                     Five applications have been heard together.  Each application is brought by the Official Trustee in Bankruptcy.  The named respondent in each case is a person who became bankrupt upon presentation of a creditor's petition.  The applicant (“the Trustee”) seeks declarations in the following form:

That the furnishing by the respondent of her statement of affairs to her trustee in bankruptcy on [a particular date] was an effective filing as of 16 December 1996 for the purposes of Part VII of the Bankruptcy Act.

2                     I shall deal first with the application relating to June Sheila Street, one of the five respondents.  Her case does not differ in any material respect from the other four. 

3                     Ms Street became bankrupt upon the presentation of a creditor's petition on 18 July 1995.  On or about 10 September 1995 Ms Street provided two original statements of affairs to the office of the Trustee in Elizabeth Street, Sydney.  That office was also the office of the Official Receiver.  The statements of affairs were provided to a Mr Studman, who was the agent both of the Trustee and of the Official Receiver.  It seems that Mr Studman retained the statements of affairs at all material times.

4                     Prior to 16 December 1996, s 54(1) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) required a person against whom a sequestration order had been made to:

“(a)     make out and file in the office of the Registrar for the District in which the sequestration order was made a statement of his affairs; and

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

5                     The office of the Registrar for the Bankruptcy District of New South Wales was located in the Law Courts Building at Queens Square, Sydney.  Ms Street did not file her statements of affairs with the Registrar, as contemplated by s 54(1) of the Bankruptcy Act.

6                     On 16 December 1996, amendments to s 54(1) of the Bankruptcy Act effected by the Bankruptcy Legislation Amendment Act 1996 (Cth) came into force.  Thereafter, a bankrupt was no longer required to file the original of the statement of affairs in the office of the Registrar.  Rather, the bankrupt was required to file the statement in the office of the Official Receiver for the District in which the sequestration order had been made.  In New South Wales, that office was located within the premises occupied by the Trustee.  As I have indicated, Mr Studman occupied a dual role as agent both for the Trustee and for the Official Receiver.

7                     The Trustee, although seeking to preserve the appearance of neutrality, in effect has argued in support of the declaratory relief sought in the application.  Counsel for Ms Street and the other four respondents has also supported making the declaration.  Both the Trustee and Ms Street rely upon the decision of Weinberg J in Tsingaris v Official Receiver in Bankruptcy [1999] FCA 1389.  The facts in that case, according to the submissions of both counsel, are indistinguishable from the present.  Weinberg J made a declaration in the following form:

“Declare that the copy of the statement of affairs signed by the applicant on 27 November 1996, and furnished by him on that date to the Official Trustee in Bankruptcy, be deemed to have been filed in the office of the Official Receiver on 16 December 1996, in compliance with the requirements of s 54(1) of the Bankruptcy Act 1966 (Cth).”

8                     Weinberg J appears to have made the declaration in reliance upon s 306(1) of the Bankruptcy Act, which provides as follows:

“Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.”

9                     His Honour pointed out that the applicant had lodged the statement of affairs with a person who was in fact an agent for the Official Receiver.  Custody of that document was retained by that person until 16 December 1996, when the amending legislation came into force.  The same person retained the document thereafter.  His Honour pointed out that, had the applicant filed the statement with the Official Receiver on 16 December 1996, it would have been received by the very same person who in fact retained it on that date. 

10                  It would seem, then, that the “irregularity” to which Weinberg J was referring was the failure of the applicant to file on 16 December 1996 the document which (as it happened) was already in the possession of the Official Receiver.  Perhaps not surprisingly, his Honour held that s 306(1) of the Bankruptcy Act had the result that the “proceedings” (the filing of the statement of affairs) had not been invalidated by the irregularity.  A similar approach was taken by Marshall J in Nikoglou v Official Receiver in Bankruptcy [2000] FCA 8.

11                  Since both parties have indicated that they accept the reasoning in Tsingaris and Nikoglou it is appropriate that I follow those decisions.  I am inclined to think that the form of declaration should be slightly different. Accordingly, I declare in Ms Street’s case that:

the statement of affairs signed by the respondent on 8 September 1995, and which was held by or on behalf of the Official Receiver on 16 December 1996, be taken to have been filed with the Official Receiver on that date in compliance with the requirements of s 54(1) of the Bankruptcy Act. 

12                  Each counsel has indicated that he would be satisfied with a declaration in these terms.

13                  Since the other four applications involve identical facts, I shall make equivalent declarations in these cases.  I direct the Trustee to file with my chambers a declaration in each of the matters in the form that I have indicated.

14                  In the case of Simone Halls, there is a further issue in that she did not sign the statement of affairs.  The Trustee accepts that that is an irregularity for the purposes of s 306(1) of the Bankruptcy Act and that the statement of affairs was in fact acted upon in Ms Halls' bankruptcy.  Accordingly, in her case I shall make a further declaration that, notwithstanding the absence of a signature on the statement of affairs, it was filed in compliance with s 54(1) of the Bankruptcy Act on 16 December 1996. 

Associate:

Dated:              1 March 2000