FEDERAL COURT OF AUSTRALIA

Official Trustee in Bankruptcy v Raeffaele, in the matter of Tindaro Raeffaele [2003] FCA 328

IN THE MATTER OF TINDARO RAEFFAELE

OFFICIAL TRUSTEE IN BANKRUPTCY V TINDARO RAEFFAELE

N 7076 of 2003

ALLSOP J

8 APRIL 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  Orders be made in accordance with pars 1 and 2 in the Application filed on 13 March 2003 and dated 12 March 2003, those paragraphs being as follows:

(a)                that the applicant distribute dividends amongst the creditors of the bankrupt estate of Tindaro Raeffaele (“Bankrupt”), who have proved their debts, in accordance with Division 5 of Part VI of the Bankruptcy Act, as if the Bankrupt had filed a Statement of Affairs, and those creditors had been stated to be creditors in it;

(b)                that the costs of the Applicant of and incidental to this Application be paid out of the estate of the Bankrupt.

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

REASONS FOR JUDGMENT

1                     This is an application under s146 of the Bankruptcy Act 1966 (Cth) made ex parte by the Official Trustee in Bankruptcy as trustee of the property of Tindaro Raeffaele.

2                     The orders sought in the application are that the Court permit the distribution of the estate of the bankrupt, Tindaro Raeffaele, to be distributed amongst the creditors to the bankrupt estate of the bankrupt who have proved their debts in accordance with Division 5 Part VI of the Bankruptcy Act as if the bankrupt had filed a statement of affairs and those creditors had been stated to be creditors in it.  An order that the costs of the applicant of, and incidental to, this application be paid out of the estate of the bankrupt is also sought. 

3                     In support of the application there is filed and read an affidavit of Joyce Fu, sworn 10 March 2003.  Ms Fu is an employee of the Insolvency and Trustee Service of Australia and she recounts the history of the matter.  I do not propose to set out exhaustively the chronology of the matter described in the four-page affidavit of Ms Fu.

4                     The bankrupt was made bankrupt by an order of a Judge of this Court at the instance of Mervyn Cummings as petitioning creditor, who was owed a little under $3000.  After the Court made the order for sequestration, the Official Trustee in Bankruptcy was appointed trustee of the estate.  As recounted in Ms Fu's affidavit, the Official Trustee made a number of attempts to obtain a statement of affairs from the bankrupt.  He was unsuccessful.  Attempts were made to examine the bankrupt, who refused to be sworn.  The matter reached the point where a warrant had to be issued for the arrest of the bankrupt to bring him to Court.  Even when brought to Court he refused to be sworn to give evidence.

5                     It appears from the affidavit that the bankrupt has a significant body of assets including nearly $200,000 cash in a bank account and two properties.  The total value of creditors is a little over $3,000.  The affidavit of Ms Fu recounts satisfactory attempts to publicise the existence of the bankruptcy and to give notice to such creditors as there may otherwise be.  In all the circumstances I am satisfied that it is appropriate that the distribution of the assets be made to the creditors in terms as requested. 

6                     The evidence is to the effect that the bankruptcy administration is all but complete except for the distribution of a dividend to creditors.  Any further delay in this matter in my view, examining the evidence as to advertising to bring in creditors, would be unnecessary and inappropriate, and in all the circumstances I propose to make an order in terms of Order 1 and Order 2 of the application filed herein, and I so order. 

7                     I had thought that it may be appropriate to identify as a condition of making the order that further attempts be made to notify the bankrupt of these orders and to, in effect, stay them for a period of time.  However, given his total lack of interest in his own bankruptcy hitherto, and the small amount of the creditors, I think that would only act to his further disadvantage and to the delay of the creditors in receiving their funds to do so.  Therefore in my view it is not appropriate to make any such condition of further advertisement. 

8                     Therefore I make orders in accordance with pars 1 and 2 in the application filed on 13 March and dated 12 March 2003.  

Associate:

Dated:              2 May 2003