Cole v Australian Financial Security Authority [2019] FCA 1676

File number:

WAD 436 of 2019



Date of judgment:

10 October 2019


BANKRUPTCY - application under s 33A of the Bankruptcy Act 1966 (Cth) for orders altering the date of filing of a statement of affairs - where applicant believed on reasonable grounds that the statement of affairs had been filed in September 2016 - where trustees raised no objection - orders made


Bankruptcy Act 1966 (Cth) ss 33A, 54, 149

Date of hearing:

10 October 2019


Western Australia


General Division

National Practice Area:

Commercial and Corporations


General and Personal Insolvency



Number of paragraphs:


Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

The First Respondent filed a submitting notice save as to costs

Counsel for the Second Respondents:

The Second Respondents filed a submitting notice


WAD 436 of 2019






First Respondent


Second Respondents




10 OCTOBER 2019


1.    Pursuant to s 33A of the Bankruptcy Act 1966 (Cth) the statement of affairs be treated as having been filed on 10 November 2016.

2.    There be liberty to the first respondent to apply within 14 days for any orders in relation to costs.

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



1    A sequestration order was made in respect of the estate of Mr Kenneth Cole on 13 September 2016. In consequence, s 54(1) of the Bankruptcy Act 1966 (Cth) operated to require Mr Cole to make out and file with the official receiver a statement of his affairs and provide a copy of the statement to his trustees. Relevantly for present purposes, filing of the statement of affairs is significant because the automatic discharge from bankruptcy provided for by s 149 of the Bankruptcy Act takes effect three years after the date on which Mr Cole filed his statement of affairs.

2    Mr Cole prepared and signed a statement of affairs prior to his bankruptcy. It was dated 9 September 2016. After the sequestration order was made, Mr Cole's trustees then arranged for the statement of affairs to be filed. On 19 September 2016, Mr Cole was informed that the statement of affairs was not accepted for filing because its date preceded the date of the sequestration order. In an affidavit in support of his present application, Mr Cole has deposed that his best recollection is that he then re-dated the statement of affairs and sent it by post to the Australian Financial Security Authority (AFSA) the body responsible for administering the Bankruptcy Act, including the functions of the official receiver. However, the records of AFSA apparently do not include the re-dated document.

3    Mr Cole's affairs have been administered by his trustees since September 2016. However, it was not until July this year that he was told by his trustees that there was an issue with his bankruptcy and he should contact AFSA directly. He did so, and as a result Mr Cole has discovered the issue with his statement of affairs. On 31 July 2019, Mr Cole filed a re-signed and re-dated version of the statement of affairs which has been accepted by AFSA. Mr Cole then made a request that AFSA amend the date of filing of his statement of affairs in the circumstances that I have just recounted. However, AFSA has concluded that the register is accurate, having regard to the events that happened, and the date of filing is correctly shown as 31 July 2019.

4    The consequence is that Mr Cole's bankruptcy, which would otherwise have been automatically discharged by this time, will continue for another three years from 31 July 2019.

5    Section 33A(2) of the Bankruptcy Act provides that if the court is satisfied that a person in the circumstances of Mr Cole believed on reasonable grounds that the statement of affairs 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. Section 33A(3) goes on to provide that 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.

6    Mr Cole applies for an order under s 33A. I am satisfied that the matters deposed to by him establish a belief on reasonable grounds that his statement of affairs was filed sometime in late September 2016 by returning a re-dated document by post to AFSA, and that an order should be made under the statutory provision.

7    There is no suggestion that the failure to lodge a compliant statement of affairs dated after the sequestration order has had any consequence for the administration of his bankruptcy. There is no suggestion that the policy of requiring a statement of affairs on the public record has frustrated any inquiry by a third party or has compromised the provision of information to the trustees. There is no suggestion that the statement of affairs provided by Mr Cole to the trustees was otherwise deficient.

8    When the matter first came before me, AFSA was named as the sole respondent. AFSA filed a submitting appearance, but sought to be heard on the question of costs. There was no appearance for AFSA, and there is no appearance today. I was informed by Mr Cole that he had commenced the application without joining his trustees, on their advice. As the proposed orders would affect the administration of the affairs of Mr Cole and his bankruptcy, I formed the view that the orders could not be made without joining the trustees as a party to the application. I made orders for the trustees to be joined as respondents. They have now been served and have filed a submitting appearance and do not want to be heard on the question of costs.

9    In those circumstances, it is apparent that the trustees raise no objection in respect of the application and therefore I am satisfied that it is appropriate to make the orders sought. I will order that the statement of affairs be treated as having been filed on 10 November 2016, being a date that will result in the automatic termination of Mr Cole's bankruptcy more than 30 days from today. I will, given the terms in which AFSA has filed its submitting appearance, reserve to AFSA liberty to apply within 14 days in relation to the question of costs. However, I note that on the materials before me, there would not appear to be any reason for making a costs order, given that AFSA has filed a submitting notice of appearance and the issues raised by the present application are not of wide compass.

10    The application made sought orders directing AFSA to record the date of commencement of bankruptcy as being varied to a date determined by the court. The consequence of the order I have made is that the Bankruptcy Act will operate on the basis that Mr Cole's bankruptcy commenced on 10 November 2016. I am of the view that s 33A does not empower the Court to make an order to the effect sought.

11    In an appropriate case, the court may be invited to make declaratory relief as to the consequences of an order under s 33A for the date of commencement of a bankruptcy. However, there is nothing before me to suggest that AFSA will not adjust its records to reflect the orders I will make under s 33A or that the trustees would not give effect to those orders in the administration of the affairs of Mr Cole.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.


Dated:    11 October 2019