FEDERAL COURT OF AUSTRALIA

Matteucci, in the matter of Bankrupt Estate of Matteucci v Gollant [2013] FCA 6

IN THE MATTER OF BANKRUPT ESTATE OF MARISA MATTEUCCI

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE MATTER OF BANKRUPT ESTATE OF MARISA MATTEUCCI

REASONS FOR JUDGMENT

1    On 18 October 2011, the applicant filed an application in this Court seeking the following orders:

1.    An Order pursuant to Section 33(1)(c) of the Bankruptcy Act 1966 abridging the time from the date of the filing by the bankrupt of her Statement of Affairs with the Official Receiver to the date of her discharge from bankruptcy be abridged (sic) from 3 years to nil or to such other time as the Court thinks fit.

2.    In the alternative to Order 1 above, an Order abridging the time in which the bankrupt may apply to the Trustee for an early discharge from her bankruptcy pursuant to Section 149s of the Bankruptcy Act 1966 be abridged (sic) from 6 months to nil or to such other time as the Court thinks fit.

3.    In the alternative, if applicable an order annulling the existing order declaring the applicant to be bankrupt.

4.    Such further and other Orders as the Court thinks fit.

2    On 22 October 2012, I made an order that the application be dismissed for failure by the applicant to attend the hearing on that day, failure to prosecute the proceeding and failure to comply with the directions of the court.

3    On 23 October 2012, the applicant made an application to set aside the orders made by me on the previous day on the ground that she had inadvertently assumed that the application was to be heard at a later time on 22 October 2012, which was the reason that she did not attend at the hearing when the orders were made.

4    She told me that she wished to pursue only the first order sought in the originating application. I made an order setting aside the orders dismissing the applicant’s application the previous day and, in lieu thereof, made an order dismissing the applicant’s claim in relation to paragraphs 2 and 3 of the originating application.

5    I adjourned the hearing until 19 November 2012.

6    On 6 July 1999, Tesselaar Nominees Pty Ltd trading as Tesselaar Flowers obtained a judgment against the applicant trading as Vanessa’s Florist at 52 Gap Road, Alice Springs in the Magistrates Court of Victoria, Melbourne, in the sum of $13,797.69. As at 21 July 1999, the amount owing, including interest accrued pursuant to s 2 of the Penalty Interest Rates Act 1983 (Vic), was $13,867.43. The Federal Court of Australia’s file VG7676/1999 in Melbourne shows that on 28 July 1999 at 7.45am, the applicant was served personally with a bankruptcy notice at 52 Gap Road, Alice Springs, Northern Territory by a process server, Max Dana Thomas Stewart, claiming $13,867.43.

7    The applicant did not respond to the bankruptcy notice and as a result an act of bankruptcy occurred for failure to comply with that notice: s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). On 7 October 1999, Tesselaar Nominees Pty Ltd issued a creditor’s petition in the Federal Court of Australia at the Victorian registry. The Federal Court file shows the petition was served personally on the applicant on 2 November 1999 at 7.20am at her home address, 52 Gap Road, Alice Springs, Northern Territory, by the same process server, Max Stewart.

8    The creditor’s petition showed the time and date for hearing being 9.45am on Tuesday, 23 November 1999.

9    The Federal Court file shows that on that day the petitioning creditor’s solicitors and the applicant, who was of course the respondent to that proceeding, signed a minute of consent order for an order that the creditor’s petition be adjourned to 7 December 1999.

10    On 23 November 1999, in conformity with the signed minute, Registrar Wood adjourned the further hearing of the creditor’s petition to 7 December 1999 at 9.45am. He made a further order that a sealed copy of his orders be served on the applicant by post at 52 Gap Road, Alice Springs, Northern Territory as soon as practicable and an affidavit of service be filed prior to the next hearing.

11    The Federal Court file shows that a secretary employed by the petitioning creditor’s solicitor, Rhonda Pizzey, swore an affidavit in which she deposed that she complied with Registrar Wood’s order by posting a copy of the orders by pre-paid ordinary post at the post office at Collins Street West, Melbourne, 3000 in an envelope addressed to the applicant at 52 Gap Road, Alice Springs, Northern Territory on 26 November 1999 at 9.20am.

12    On 7 December 1999, further orders were made by Registrar Wood: first to adjourn the creditor’s petition to 29 February 2000 at 9.45am; and secondly that a copy of the order be served on the applicant by post at 52 Gap Road, Alice Springs, Northern Territory as soon as practicable and an affidavit of service be filed prior to the next hearing.

13    On 15 December 1999, Rhonda Pizzey swore an affidavit which was filed 28 February 2000, in which she deposed that she sent by pre-paid ordinary post at the post box on the corner of Collins Street and William Street, Melbourne, a copy of Registrar Wood’s orders made on 7 December 1999 addressed to Marisa Matteucci at 52 Gap Road, Alice Springs, NT, 0870, on 8 December 1999 at 5.45pm.

14    On 29 February 2000, Registrar Fary made a sequestration order against the applicant’s estate and ordered the petitioning creditor’s costs be paid in accordance with the Bankruptcy Act. Paul Anthony Pattison was appointed trustee of her bankrupt estate.

15    There is no record, at least on the Federal Court file, as to whether the sequestration order was served upon the applicant.

16    The applicant claims that she was not served with the bankruptcy notice and therefore did not respond to it by 18 August 1999. She says she has no recollection of being served with the creditor’s petition. She says she cannot recall ever having signed the consent order dated 23 November 1999.

17    She has not addressed in her evidence service of the orders made by Registrar Wood on 23 November 1999 and 7 December 1999.

18    The applicant claims that she was never served with the sequestration order. As I have said, there is no evidence on the file that the sequestration order was served upon her.

19    The applicant claims that between 29 February 2000 when the sequestration order was made and 30 March 2011 when she was told by her father that she might have been adjudged bankrupt, the applicant heard nothing from any person or party in relation to the original debt or the bankruptcy.

20    The applicant has not deposed as to what happened to her other creditors.

21    On 30 September 2011, the applicant filed her statement of affairs with the official receiver.

22    On 25 November 2011, Mathew Terence Gollant and Timothy Shuttleworth Holden were appointed the joint and several trustees of her bankrupt estate.

23    On 2 December 2011, an affidavit was filed by Saxbys Lawyers in this proceeding, sworn by Mathew Gollant who said that he and Mr Holden had been appointed joint and several trustees on 25 November 2011 in lieu of Mr Pattison.

24    Mr Gollant said that on 29 November 2011, he obtained from Mr Pattison such books and records as relate to the applicant’s bankrupt estate.

25    He said that the creditors of the applicant’s bankrupt estate may total $180,222 and that at that time he had not had sufficient time to investigate the applicant’s claims. He sought an adjournment. The matter was adjourned.

26    On 30 November 2011, the trustees wrote to the Court advising that the applicant had not disclosed in her statement of affairs several creditors.

27    They further advised that the petitioning creditor had funded the previous trustee to attend the business premises of the bankrupt in Alice Springs to inspect and seize business assets and deliver the necessary notices to the bankrupt.

28    They advised that several attempts to deliver the notices to the bankrupt had proved fruitless as the bankrupt had left the area leaving a significant number of personal creditors and no forwarding address.

29    They advised that the applicant’s property was sold in September 2000 leaving a shortfall of $20,319.71.

30    They advised in that letter that there were creditors to the extent of $180,222 plus interest and trustee fees in excess of $20,000.

31    As I have said, the applicant has not disclosed or referred to her other creditors.

32    On 23 January 2012, the trustees solicitors wrote to the Court:

The respondents have formed the view they do not propose to consent nor oppose the applicant’s application, but rather will abide by any decision that the Court makes with respect to the application on the basis that no order as to costs will be made against them. As such, the respondents do not intend to appear at the hearing of the application. However, if the Court wishes to hear from the respondents in relation to the application or if the applicant wishes to seek a costs order against them, then we would be grateful if we could be informed.

33    In later correspondence by e-mail, the trustees again advised the Court that they did not wish to be heard on the application and that they would abide by the Court’s orders.

34    The evidence does not support a claim that the applicant was unaware of any proceedings for her bankruptcy.

35    The applicant does not dispute that she signed a minute seeking an adjournment, which was granted on the same day, of the creditor’s petition. She merely says she has no recollection of doing so.

36    It is unlikely that if the applicant had creditors whose debts exceeded $180,000 in relation to a business which she carried on in Alice Springs she was unaware of proceedings for her bankruptcy.

37    It may be that her mental state at that time and in the intervening period has been such that she has incomplete memory of the events leading up to her bankruptcy.

38    In any event, the evidence that she has adduced is not sufficient to make out the claim that she had never been served with any proceeding in relation to bankruptcy.

39    The applicant abandoned her claim to have the bankruptcy annulled. She also abandoned all other claims for relief except the claim in paragraph 1 of the orders sought.

40    At the most recent hearing, the applicant was represented by a solicitor, Mr Monteleone of Monteleone Lawyers. He filed written submissions in support of her application and spoke to those submissions.

41    Mr Monteleone argued that the applicant should be entitled to relief under s 33(1)(c) of the Bankruptcy Act. In the alternative, he argued that the applicant is entitled to relief under s 33A of the Bankruptcy Act. The originating application did not seek relief under that section but I will, for completeness sake, address the argument.

42    Section 33(1)(c) of the Bankruptcy Act provides:

33(1)    The Court may:

    …

(c)    extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time.

43    In his written submissions, Mr Monteleone sought pursuant to s 33(1)(c) an order that the Court exercise its discretion to abridge the time for the applicant’s discharge from bankrtupcy from the date of the filing by the applicant of the statement of affairs with the official receiver (30 September 2011) to the date of this judgment. The effect would be to shorten the period of bankruptcy by nearly two years.

44    Section 54 of the Bankruptcy Act provides that where a sequestration order is made, the bankrupt shall, within 14 days from the date on which he or she is notified of the bankruptcy, make out and file with the official receiver a statement of his or her affairs and furnish a copy of the statement to the trustee.

45    The applicant claims that she was never notified of her bankruptcy and in those circumstances did not file her statement of affairs until over 11 years after the sequestration order was made, when she first became aware that she was a bankrupt.

46    Section 149 provides for a bankrupt’s discharge from bankruptcy and in the applicant’s case, s 149(4) is relevant, which provides that a bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs.

47    The applicant’s claim, therefore, is for an order that the period of 3 years mentioned in s 149(4) should be abridged to the period between 30 September 2011 and today.

48    Unfortunately, the Court does not have jurisdiction to make an order of that kind.

49    In Nilant (as trustee of the bankrupt estate of Macchia) v Macchia (1997) 148 ALR 329 (“Nilant v Macchia”), the Full Court of the Federal Court said that the Court did not have power to abridge the time limited by s 149(3) (which is not relevantly distinguishable). The Court was of the opinion that power was not given by s 33(1)(c) because the time provided in s 149 for the automatic discharge from bankruptcy was not a time limited by the Act for the doing of an act or thing. In that decision, the Full Court overruled a series of decisions at first instance commencing with Re Rohde (1993) 42 FCR 149; 115 ALR 705 to the contrary.

50    The Full Court urged the Parliament to consider amending the Act.

51    The applicant is not entitled to rely upon s 33(1)(c) in aid of an order abridging the time for the automatic discharge of bankruptcy.

52    Section 33A was included in the Bankruptcy Act in 2002 no doubt in response to the suggestion of the Full Court in Nilant v Macchia. It provides:

33A (1)    This section applies to a statement of affairs that was filed for the purposes of section 54, 55, 56B, 56F or 57 by a bankrupt, or by a person who later became a bankrupt.

(2)    If the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed.

(3)    The Court cannot make an order that would result in the person being discharged from bankruptcy earlier than 30 days after the order is made.

53    That section addresses s 54, which, as I have said, requires a bankrupt to make out and file with the official receiver a statement of affairs and furnish a copy of the statement to the trustee.

54    Subsection (2) of s 33A empowers a Court to treat the filed statement of affairs as having been filed at a time before it was actually filed by the bankrupt. The power to make the order depends upon the Court being satisfied that the person believed on reasonable grounds that the statement had already been filed at a time before it was actually filed.

55    Unfortunately, s 33A does not apply to this applicant because she did not believe at any time prior to 30 September 2011 that she had filed a statement of affairs because she did not know, on her own evidence, prior to that time that she had been adjudged bankrupt.

56    For those reasons, s 33A has no application.

57    Unfortunately, there is no power that the applicant can call in aid in relation to shortening the period of her bankruptcy. It will run for 3 years from 30 September 2011: s 149.

58    For those reasons, I dismiss paragraph 1 of the application which will have the effect, because of the order made on 23 October 2012, that the originating application is dismissed.

59     I make no order as to costs.

Associate:

Dated:    15 January 2013