Federal Court of Australia

Hashenko v Gollant as Trustee for the Bankrupt Estate of White [2020] FCA 1836

ORDERS

THE COURT ORDERS THAT:

1.    The bankruptcy of the second respondent is annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth).

2.    The second respondent pay the applicant’s costs of and incidental to the proceeding.

3.    The second respondent pay the first respondent’s costs of and incidental to the proceeding and the costs of administering his bankrupt estate.

4.    The applicant has liberty to apply by no later than 15 February 2021 to seek such orders as she may be advised concerning the execution of documents as necessary to effect a transfer of legal title to the applicant of the property located at 114 Boronia Street South Wentworthville NSW, being Folio Identifiers 3/242919 and 5/242919, to her upon giving not less than 7 days’ notice of any such application to the respondents.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

introduction

1    The applicant, Ms Hashenko, seeks an order annulling the bankruptcy of the second respondent, Mr White, pursuant to s 153B of the Bankruptcy Act 1966 (Cth). Ms Hashenko also seeks the costs of the bankruptcy and this proceeding be paid by Mr White. Ms Hashenko and Mr White were married in 2010 and divorced in 2018.

2    Mr White’s bankruptcy was commenced upon acceptance of his debtor’s petition on 11 January 2018 by the Official Receiver, the Australian Financial Security Authority (AFSA). On 9 March 2018, the conduct of the bankruptcy was transferred to the first respondent, Mr Gollant (Trustee).

3    The bankrupt estate is principally comprised of a property located at 114 Boronia Street, South Wentworthville in New South Wales (South Wentworthville Property). The South Wentworthville Property was formerly the family home of Ms Hashenko and Mr White. It is now occupied by Ms Hashenko and her and Mr White’s children.

4    The parties’ contentions in this proceeding may be summarised as follows.

5    Ms Hashenko submitted that Mr White was not insolvent at the time of his petition. She submitted that Mr White’s solvency was apparent from the Statement of Affairs filed on 4 January 2018. Further, that Statement did not disclose three properties that he owned or had an interest in at the time. If those properties are taken into account, it is plain that Mr White was not insolvent when he presented his debtors petition. In the alternative, Ms Hashenko submitted that Mr White’s bankruptcy should be annulled as he presented his petition for an ulterior purpose, namely, to defeat the giving effect to of certain Consent Orders (as defined below), which were made by the Federal Circuit Court of Australia in connection with the settlement of a proceeding in that Court between Mr White and Ms Hashenko concerning, inter alia, the South Wentworthville Property. The Consent Orders included an order that Mr White transfer his interest in the South Wentworthville Property to Ms Hashenko.

6    Mr White denied that he failed to disclose interests in the three properties and submitted that he was, and remains, insolvent. He claimed that he did not file his debtor’s petition for an ulterior purpose, rather, that it was merely incidental that this occurred after he agreed to the Consent Orders. He gave evidence that he was willing to sign a transfer of his interest in the South Wentworthville Property to Ms Hashenko, and that he made the Trustee aware of his preparedness to do so.

7    The Trustee contended that Mr White was insolvent at the time of the petition, whether or not he retained any interest he had in the South Wentworthville Property. Further, the Trustee submitted that Ms Hashenko should not have brought the present proceeding for annulment, because there was an alternative remedy available pursuant to s 106A of the Family Law Act 1975 (Cth). That section permits the Circuit Court to order that a registrar of that Court execute relevant documents necessary to give effect to a court order, if that is required. The Trustee seeks his costs in connection with this proceeding and his costs of the conduct of the bankruptcy generally, against Ms Hashenko, alternatively if the bankruptcy is annulled the Trustee seeks his costs from Ms Hashenko, either solely or jointly and severally with Mr White.

8    For the reasons that follow the bankruptcy of Mr White will be annulled. Further, the Trustee’s costs of the bankruptcy and the proceeding are to be recovered from Mr White, as are Ms Hashenko’s costs of this proceeding. I will reserve liberty to Ms Hashenko to apply by 15 February 2021 for an order that Mr White do all things reasonably required to transfer his interest in the South Wentworthville Property to her, upon giving Mr White and the Trustee not less than 7 days’ notice of any such application.

background

9    I shall set out below the background and surrounding factual circumstances in more detail than would have been required but for the question of costs.

Marriage breakdown and Circuit Court proceeding

10    Ms Hashenko and Mr White were married on 29 November 2010. They have two children. They separated in March 2016, and were divorced on 8 March 2018.

11    On 22 March 2017, Federal Circuit Court of Australia Proceeding (No. (P) PAC 1259/2017) was commenced by Mr White for orders concerning custody of the children and the distribution of property. In support of his application, Mr White adopted as truthful the contents of an Original Financial Statement dated 21 March 2017 and an Amended Financial Statement dated 11 July 2017. The entries in these financial statements are set out further below.

12    On 30 November 2017, Consent Orders were entered into in the Circuit Court proceeding as follows:

1.    That within 42 days the Applicant Husband do all things and sign all documents to assign all his right title and interest in the property at 114 Boronia Street South Wentworthville NSW, being Folio Identifiers 3/242919 and 5/242919 ("South Wentworthville Property").

2.    That simultaneously with Order 1, the Respondent Wife shall refinance the mortgage registered on the South Wentworthville Property into a mortgage in her sole name and the Applicant Husband shall give all consents necessary to affect such mortgage.

3.    That the Wife retains all her right title and interest in the 2012 Toyota Kluga motor vehicle, registration number DR 1606 currently registered in her name and hereby indemnify the Husband in respect of any liability in respect of the said motor vehicle.

…

7.    That the Wife and Husband do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

8.    That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

9.    That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:

a.    Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

…

13    On 6 December 2017, Ms Hashenko’s solicitor, Branston Neville Lawyers (BNL), provided Mr White with a transfer form and a discharge authority to give effect to orders 1 and 2 of the Consent Orders. These forms were not signed by Mr White. Rather, in early January 2018, Mr White filed for his own bankruptcy by presenting his debtors petition accompanied by a Statement of Affairs to the Official Receiver at the Australian Financial Security Authority (AFSA). The Statement of Affairs referred to the following assets and liabilities of Mr White:

(1)    Assets in the form of:

(a)    The South Wentworthville Property, said to be valued at $1,800,000 and be encumbered by a mortgage to secure a debt of $751,171.97 to the Australia and New Zealand Bank (ANZ);

(b)    A Toyota Kluger car said to be in the possession of Ms Hashenko, and with an estimated value of $26,000;

(c)    an Omega Constellation watch, also said to be in the possession of Ms Hashenko, and said to be worth $5,000; and

(2)    Liabilities of:

(d)    $751,171.97 by the joint mortgage in favour of the ANZ;

(e)    $72,700 to unsecured creditors being credit card providers.

14    Following Mr White’s bankruptcy, Ms Hashenko’s representatives sought to give effect to the Consent Orders, but were not successful. On 16 January 2018, AFSA notified Ms Hashenko that the South Wentworthville Property had vested in it pursuant to the Official Trustee’s acceptance of the debtor’s petition. Ms Hashenko received this letter in February 2018.

15    On 29 January 2018, BNL sought enforcement of the Consent Orders in the Circuit Court on Ms Hashenko’s behalf. On that date they wrote to the Associate of the Presiding Judge in the Circuit Court seeking orders for the enforcement of the Consent Orders pursuant to s 106A of the Family Law Act. It appears that this application was later stayed pending the present proceeding.

16    On 26 February 2018, BNL wrote to AFSA by email. The email attached a copy of the Consent Orders and requested the Official Receiver execute the transfer form and discharge authority as trustee in Mr White’s place.

17    On 9 March 2018, the administration of Mr White’s estate was transferred from AFSA to Mr Gollant, as Trustee of the Bankrupt Estate of Mr White. Shortly thereafter, the Trustee lodged a caveat over the South Wentworthville Property to protect his interest in that property.

18    On 1 June 2018, BNL then wrote to the Trustee foreshadowing the present application for the annulment of Mr White’s bankruptcy and requested the Trustee not incur any further costs unnecessarily in connection with the bankruptcy.

The Annulment Application

19    Ms Hashenko issued the present proceeding on 3 July 2018 (the Annulment Application).

20    On 10 July 2018, the Trustee’s solicitor, O’Neill Partners (ONP), wrote to BNL noting several matters. They acknowledged receipt of the Annulment Application materials, but stated they did not consider the materials to disclose a “clear basis” for the Application. Further they said that they had “some concerns” in relation to the valuation attributed to the South Wentworthville Property in the Circuit Court proceeding and requested access to the Property for the purpose of obtaining a valuation.

21    On 27 July 2018, BNL replied to ONP’s letter of 10 July 2018. The letter said that they made the Annulment Application because Mr White’s “statement of assets and liabilities do not disclose him to be insolvent … [and] in an abuse of the petition process, he lodged a debtor’s petition solely with the intent to frustrate or prevent that transfer occurring.” The letter also stated that in BNL’s view a formal valuation was unnecessary as the South Wentworthville Property was subject to an agreed value in the Circuit Court proceeding and obtaining a further valuation would involve incurring costs unnecessarily.

22    On 23 August 2018, ONP replied. The letter stated that the Trustee is “entirely uncertain as to the basis (and utility) of [Ms Hashenko’s] application”. The letter also drew attention to the availability of relief under s 106A of the Family Law Act.

23    On 28 August 2018, there was a case management hearing in this proceeding before Rares J. The Trustee’s legal representative indicated that the Trustee did not take any position in relation to the application, but rather appeared for the purpose of protecting the security of his costs to date. Justice Rares excused the Trustee from further participation in this proceeding but required him to provide a report pursuant to r 7.06 of the Bankruptcy Rules 2016. The Trustee subsequently provided the report, to which I shall refer further below. At the case management hearing, Mr White appeared self-represented. He submitted to Justice Rares that he entered the Consent Orders “under duress”. He stated that “I was basically threatened by [Ms Hashenko] … [i]f I did not sign those orders, I would not see my children …”.

24    On 29 August 2018, Mr White applied to the Family Court of Australia to have the Consent Orders set aside on the basis that he had entered into them under duress (Review Application).

25    It appears that on 15 March 2019, BNL wrote to Mr White requesting he execute a transfer of the South Wentworthville Property to Ms Hashenko. The letter was not in evidence, however, it was referred to in a letter from the Trustee’s solicitors on 21 March 2019 to BNL:

We refer to the above matter and have been provided with a copy of your letter to Mr White dated 15 March 2019.

We note that your letter requests that Mr White sign a transfer document in order to transfer his interest in the property known as 114 Boronia Street, South Wentworthville, to your client.

As you know, our client is the trustee of Mr White's bankrupt estate. Upon Mr White being made bankrupt, all of Mr White's assets (save for any exempt property) vested with our client. In the circumstances, our client considers that Mr White is unable to sign the Transfer as he has no capacity, nor any authority from our client, to do so.

In any event, our client considers your client's request to be inappropriate, given that:

1.    Your client has made an application to annul Mr White's bankruptcy (Annulment Application); and

2.    Mr White has himself filed an application seeking to set aside the Consent Orders entered in the Family Court on 30 November 2017 (Review Application).

In relation to the Review Application, aside from any issues concerning any limitation period and the form/nature of the application, as a general proposition, our client considers that Mr White is unable to bring or maintain the Review Application to the extent that it seeks any relief in relation to property that has vested in our client.

In any event, it was always contemplated by our client that the Review Application be dealt with after the outcome of the Annulment Application.

In this regard, we note that, on your client's application, the hearing of the Annulment Application was adjourned to a date to be fixed.

Regardless of the above, on 23 August 2018, we wrote to you asking for confirmation as to why your client had not sought to make a formal application pursuant to section 106A of the Family Law Act, in lieu of commencing (and maintaining) the Annulment Application. A further request was made by our letter dated 27 August 2018. We did not receive a response to either letters.

However, your client now appears to have taken the approach that such relief is available to her which, noting the affidavit in support of the Annulment Application, would seem render the Annulment Application entirely superfluous.

In the circumstances, please confirm whether your client nonetheless proposes to continue with the Annulment Application. Please confirm your client's position as a matter of urgency, noting that Mr White's application for review (regardless of its prospects), is listed for further directions on 22 March 2019.

We look forward to hearing from you as a matter of urgency and our client otherwise reserves his rights.

(Emphasis added)

26    Between April 2019 and August 2019, ONP made further requests to BNL to say why relief was not being pressed under s 106A of the Family Law Act but the Annulment Application was.

27    On 2 September 2019, ONP wrote to Mr White attaching its response to the Review Application in the Family Court in a document titled “Response to Application filed in a Case”. The Response sought orders granting the Trustee leave to intervene, dismissing the application and that Mr White pay the Trustee’s costs. The letter stated that s 58 of the Bankruptcy Act had the effect that Mr White’s interest in the real property the subject of the Consent Orders was vested in the Trustee, and accordingly, Mr White did not have standing to bring the Review Application in so far as it related to that property. The letter requested that Mr White withdraw the Review Application.

28    On 3 September 2019, Mr White discontinued the Review Application.

Hearing of this Proceeding

29    At the hearing of the present proceeding, Mr White appeared in person, Ms Hashenko appeared by her counsel, and the Trustee did not appear having been earlier excused. During the hearing it became apparent that evidence from the Trustee was relevant to the evidence Mr White gave to the effect that he had for some time been willing to sign a transfer of the South Wentworthville Property to Ms Hashenko and had told the Trustee of his preparedness to do so. Attempts were made to ascertain whether the Trustee was available to give evidence at short notice but unsurprisingly he was not available. The hearing was continued on 18 and 26 June 2020, at which time the Trustee gave evidence and was cross-examined.

30    In addition to representing himself, Mr White gave evidence and was cross-examined. Ms Hashenko was not required for cross-examination on her affidavits.

31    Ms Hashenko sought annulment of Mr White’s bankruptcy pursuant to s 153B(1) of the Bankruptcy Act:

153B Annulment by Court

(1)     If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.

(2)     In the case of a debtor’s petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.

32    Whether a court should annul a bankruptcy under s 153B is a two-step process: first, the court is to determine whether the petition “ought not to have been presented” and, second, whether to exercise its discretion to annul the bankruptcy: Beaman v Bond [2017] FCAFC 142; 254 FCR 480 at [38] (McKerracher J, with whom Gilmour and Charlesworth JJ agreed). In deciding whether a petition ought not have been presented, a court is to be guided by the facts known at trial. The court is not confined to facts known at the time of the presentation of the petition: Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307; (2007) 5 ABC(NS) 122 at [12] (Tracey J). Though solvency is not a necessary condition for annulment, whether the bankrupt is solvent is relevant: see Beaman at [41] and Williamson v Michell (Trustee) [2019] FCA 481; 16 ABC(NS) 472 at [13] (Moshinsky J).

33    Subsection 153B(2) was added to the Bankruptcy Act in 2002 by the Bankruptcy Legislation Amendment Act 2002 (Cth). Prior to the amendment, the position appears to have been that a bankruptcy could not be annulled as an abuse of process if the bankrupt was insolvent at the time of the petition (see Beaman at [41] and [81]).

34    The Court has power to annul a bankruptcy based on the presentation of a debtor’s petition if the presentation of the petition was an abuse of process: Clyne v Deputy Commissioner of Taxation [1984] HCA 44; 154 CLR 589. In Clyne, Gibbs CJ, Murphy, Brennan and Dawson JJ held (at 599) that there will be an abuse of process if a debtor presents his or her own petition for a purpose foreign to the bankruptcy laws: see, also, BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611; 3 ABC(NS) 70 at [5] (Finkelstein J).

35    In Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 267, the Full Court of this Court (North, Perry and Charlesworth JJ) held (at [112]) that “the conduct of the bankrupt is a relevant consideration in determining whether an order annulling a bankruptcy should be made, as is whether an annulment will be conducive of or detrimental to commercial morality and the interests of the public”: see, also, Marek v Tregenza [1963] HCA 40; 109 CLR 1; Re Lawson (1939) 11 ABC 137. Section 55 of the Bankruptcy Act relevantly provides:

55 Debtor’s petition

(1)     Subject to this section, a debtor may present to the Official Receiver a petition against himself or herself.

…

(2A)     The Official Receiver must reject a debtor’s petition unless, at the time when the petition is presented, the debtor:

(a)     was personally present or ordinarily resident in Australia; or

(b)     had a dwelling‑house or place of business in Australia; or

(c)     was carrying on business in Australia, either personally or by means of an agent or manager; or

(d)     was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager.

(3)     The Official Receiver may reject a debtor’s petition if:

(a)     the petition does not comply substantially with the approved form; or

(b)     the petition is not accompanied by a statement of affairs; or

(c)     the Official Receiver thinks that the statement of affairs accompanying the petition is inadequate.

(3AA) The Official Receiver may reject a debtor’s petition (the current petition) if:

(a)     it appears from the information in the statement of affairs (and any additional information supplied by the debtor) that, if the debtor did not become a bankrupt, the debtor would be likely (either immediately or within a reasonable time) to be able to pay all the debts specified in the statement of affairs; and

(b)     at least one of the following applies:

(i)     it appears from the information in the statement of affairs (and any additional information supplied by the debtor) that the debtor is unwilling to pay one or more debts to a particular creditor or creditors, or is unwilling to pay creditors in general;

(ii)     before the current petition was presented, the debtor previously became a bankrupt on a debtor’s petition at least 3 times, or at least once in the period of 5 years before presentation of the current petition.

…

(4)     The Official Receiver must accept a debtor’s petition, unless the Official Receiver rejects it under this section or is directed by the Court to reject it.

…

(8)    A person who becomes a bankrupt by force of this section continues to be a bankrupt until:

(a)     he or she is discharged by force of subsection 149(1); or

(b)     his or her bankruptcy is annulled by force of subsection 74(1) or 153A(1) or under section 153B.

…

36    Section 55 does not provide criteria by which the Official Receiver is to determine whether to accept a debtor’s petition. Rather, by s 55(4), the Official Receiver ‘must’ accept the debtor’s petition unless it rejects it under one of the provisions in s 55, or by direction of the Court. The Official receiver ‘must’ reject it if the mandatory requirements in ss 55(2A) are not met, and ‘may’ reject it if either of ss 55(3) or (3AA) apply. The section therefore provides a debtor an avenue to have a sequestration order made in respect of his or her estate unless certain negative stipulations are met. It appears that there is no positive obligation on the Official Receiver to be personally satisfied that the debtor is in fact insolvent at the time he or she filed the debtor’s petition, rather, if none of the negative criteria are satisfied, the Official Receiver must accept it.

37    A debtor’s petition ought not be presented if the debtor was not, in fact, insolvent at the time he or she presented the petition. Where a debtor was in fact solvent at the time he or she presented his petition, the inference that the debtor’s petition was presented for an improper purpose will be stronger. I respectfully agree with Dowsett J in Seeger, in the matter of Seeger v Seeger [2000] FCA 732, where, at [8], his Honour cited with approval the decision of Mansfield J in Re Almassy [1999] FCA 1004; 92 FCR 597 as support for the proposition that bankruptcy as a result of a debtor's petition may be annulled if it can be shown that at the relevant time the bankrupt was solvent.

Was Mr White solvent at the time of the debtor’s petition?

38    Ms Hashenko’s primary position was that Mr White was solvent at the time he presented his debtor’s petition and therefore the bankruptcy should be annulled. The test for solvency is a cash flow test, as noted by Moshinsky J in Williamson at [49]. Subsection 5(2) of the Bankruptcy Act states: “[a] person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable.” Whether someone is able to meet their debts as and when they fall due will likely require consideration of their debts, when those debts become payable, the person’s other expenses, the person’s income, existing credit arrangements and the person’s asset position so far as they are able to be liquidated to meet debts as they fall due for payment.

39    Notwithstanding the cash flow test for insolvency, the issue concerning Mr White’s solvency was focussed upon assets Ms Hashenko claimed he owned at the time of the presentation of his petition, some of which Ms Hashenko alleged had not been disclosed in his Statement of Affairs.

Interest in the South Wentworthville Property

40    Having regard to Mr White’s subsequent discontinuance of the Review Application and the evidence he gave during the hearing of this proceeding that he is, and has been since the time he discontinued that Application, willing to execute a transfer of his interest in the South Wentworthville Property to Ms Hashenko (discussed further below), the South Wentworthville Property should not have been included in Mr White’s Statement of Affairs without disclosing the Consent Orders. Mr White’s beneficial interest in the South Wentworthville Property was transferred in equity to Ms Hashenko upon the making of the Consent Orders. This is consistent with the reasoning of the Full Court of this Court in Jones v Daniel, in the matter of Daniel [2004] FCAFC 278; 141 FCR 148 at [14] (Moore J, with whom Hill and Allsop JJ agreed), summarising Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26; 127 FCR 217 and referring there to the effect of an order under s 79 of the Family Law Act:

The members of the Full Court in Mateo did conclude that when an order (of the type presently under consideration) is made under s 79 ordering that a person presently holding a legal interest in the property transfer that interest to another person, a beneficial interest is thereby vested in the other person. Wilcox J described the order as vesting an equitable interest (at [62]) and Merkel J as transferring an equitable estate or interest (at [136]). Branson J expressed her conclusion in qualified terms (at [102]) when she spoke of it being "probably implicit in the terms of the order that the interest of the parties to the marriage in the [property] were altered by operation of the order" (emphasis added) vesting in the wife all the husband's beneficial interest in the property. It appears Branson J viewed that as the preferable construction of the order and its affect. In any event the views of a majority were clear and an equitable interest was, by the order, transferred. A trust was created for the benefit of the other person.

41    At the time of his bankruptcy, Mr White’s interest in the South Wentworthville Property was as a bare Trustee for Ms Hashenko. It was that interest which vested in the Official Trustee pursuant to s 58 of the Bankruptcy Act. However, Mr White’s allegations shortly afterwards to the effect that the Consent Orders were the result of the duress exerted upon him, if proven, could have rendered the Consent Orders voidable and therefore impliedly raised the question of whether the beneficial interest in the Property formed part of Mr White’s bankrupt estate. However, any uncertainty as to this question was resolved, at the latest, upon Mr White withdrawing the Review Application. Once the Consent Orders were no longer impugned, in my view it should have been clear to the Trustee, as was the case, that the effect of the Consent Orders had been to convey Mr White’s beneficial interest in the South Wentworthville Property to Ms Hashenko prior to Mr White’s bankruptcy and accordingly did not form part of his estate.

42    Further, I note Ms Hashenko has assumed, or is willing to assume upon execution of the necessary documentation, all liabilities under the mortgage secured against the South Wentworthville Property. So much is clear from the communications from BNL to Mr White and then to the Official Receiver after the execution of the Consent Orders. Accordingly, neither the beneficial interest in the South Wentworthville Property, nor any liabilities associated with it, should be included in any analysis of Mr White’s solvency at the time of his petition.

Undisclosed property interests

43    Ms Hashenko alleged that Mr White was solvent taking into account his ownership of three properties which he had not disclosed in his Statement of Affairs:

•    a property in Cape Town, South Africa (the Cape Town Property);

•    a property in Orlando, Florida (the Florida Property); and

•    a property in Brazil (the Brazil Property).

Cape Town Property

44    The Cape Town Property was included in Mr White’s Financial Statement in the Circuit Court proceedings, but not in his Statement of Affairs to the Trustee. Mr White conceded he did not disclose the Cape Town Property in his Statement of Affairs, but said that this was subsequently rectified.

45    The Trustee gave evidence that Mr White had later informed him that he owned the Cape Town Property jointly with his daughter from another relationship. The Trustee deposed that it would not be feasible to seek recovery of Mr White’s interest in the property due to certain restrictions on the transfer of capital imposed by the government of South Africa, difficulty obtaining possession of title deeds and because of claims by Mr White’s daughter in relation to the property. The Trustee estimated the Cape Town Property to be valued at approximately $32,000.

Florida Property

46    Mr White did not dispute that he had at one time owned the Florida Property. He deposed that the Property was sold in 2012 pursuant to the exercise of an option given under a lease with the then tenant, a Mr Terry Cranmer. Mr White referred to several documents in support of his evidence.

47    The first document was described as a “Confirmation of Sale of Florida Property”. The document is a printed copy of an email chain sent from “Iain Stewart” of “Whole World of Property” to “Josh White”, an alias for Mr White, dated 16 October 2012. The email refers to a discussion Mr Stewart had with a lawyer in Orlando concerning the preparation of contracts. It does not, however, refer to the details of any transaction in relation to the Florida Property.

48    The second and third documents are an invoice from Whole World of Property dated 5 October 2012 from Iain Stewart for 2,500 pounds and a payment receipt dated 11 October 2012 from the Westpac bank for same. The description given on the invoice is “marketing fees for sourcing buyer for condo”. The fourth document, is an email chain from September and October 2012 between Mr White and Mr Stewart, concerning the sale of the Florida Property. In the email chain it is agreed that the Property would be sold under a “10 month payment plan” for a purchase price of “$60k-$65k”. The buyer is described as being from the United Kingdom.

49    The fifth document is the purported contract of sale between Mr White and Mr Cranmer. The document is titled a “Lease Agreement with Option to Purchase Real Estate” and was signed by Mr Cranmer on 26 March 2013 and Mr White on 4 April 2013. Under the heading “description”, the document states “[t]he Landlord/Seller agrees to lease, and the Tenant/Buyer agrees to rent the [Florida Property]”. The “Rent” is specified as $5,000 per month beginning 1 April 2013, and the agreement is said to end on 1 April 2014. The document also contains a heading “option to purchase”, which provides that for consideration of $100, the Tenant/Buyer is granted the exclusive option to purchase the property at any time during the term at a price of $65,000. The Tenant/Buyer is required to notify the Landlord/Seller of the exercise of the option by 30 days’ notice. The document contains terms for the option requiring the conveyance of any title to be by general warranty deed.

50    Ms Hashenko submitted that the above documentary evidence is equivocal. She submitted that the documents indicated that the Property was leased, not sold, and Mr White remained the owner of the Florida Property when he presented his debtor’s petition. On 6 June 2019, Ms Hashenko’s solicitor conducted searches of the United States Title Records Office on the Florida Property. I admitted the documents into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth). The “Property Detail Report” listed under the title “Owner Information” the name “White Iain”, of a PO Box Address in New South Wales, Australia. The “Last Market Sale Information” listed the sale price as $59,188. Under the heading “Tax Information”, the “Total Taxable Value” was listed as $79,400. Given the United States provenance of the document, I infer that the sums are in United States dollars. Ms Hashenko also submitted that I should draw an inference against Mr White that he had not, despite having ample time to prepare for the hearing, and this issue in particular, provided a copy of any formal transfer deed or other document evidencing his disposition of the Florida Property to Mr Cranmer.

51    On the evidence before me, I find that Mr White remained the owner of the Florida Property at the time he presented his debtor’s petition, and likely at the time of the hearing. I accept that he is likely to have granted an option to purchase the property to the tenant, Mr Cranmer. However, Mr White did not produce any document indicating that Mr Cranmer had exercised that option, nor any documents indicating that there had been a change of ownership of the Florida Property. I am fortified in my conclusion that Mr White remained the owner of the property by the absence of transaction documents or public records evidencing a sale of the property. My conclusion is consistent also with the Property Details report referred to above, which records Mr White as the owner.

Brazil Property

52    Ms Hashenko also submitted that Mr White owned an off the plan apartment in a development in Brazil, which he had purchased in 2006. She tendered a receipt from a company called “A&M Global Services – Overseas Property Specialists” which recorded a payment of 3,300 pounds by a person called Ian White as “Payment in Full for a Studio Villa on plot numbers QA – 04” on 21 November 2006. Mr White did not dispute paying for the Brazil Property, however gave evidence that it was an off the plan purchase that “never actually materialised”. Mr White gave evidence that A&M Global had since become insolvent. He exhibited a 2010 report to creditors and contributories filed in the Brighton County Court in the United Kingdom which concerned a company called A&M Property Services (South Coast) Limited, which indicated it was in liquidation. In my view, the evidence concerning whether Mr White still owns the Brazil Property is inconclusive and of insufficient weight to find that Mr White owned the Brazil Property at the time he presented his petition. Further, there is no evidence of its value at the time of Mr White’s petition or at the time of the hearing. Accordingly, I am not satisfied that Mr White owned the property at the time he presented his debtor’s petition.

53    I have found that Mr White was the owner of the Cape Town and Florida Properties at the relevant time. I accept Mr White’s valuation (as stated to the Trustee) of the Cape Town Property of $32,000. In relation to the Florida Property, the Property Detail Report indicates a value of $79,400, presumably in US dollars. To assist in the conversion at date, the solicitor for Ms Hashenko tendered a print out of historical exchange rates between the USD and the AUD for the relevant period. The information was drawn from “www.xe.com”. The report indicates that on 4 January 2018, 1.00 USD purchased 1.27 AUD. This would produce an approximate value of the Florida Property of $100,838 AUD at the time of the presentation of Mr White’s petition.

54    I have not included in Mr White’s assets either the Toyota Kluger car, nor the Omega Watch which he listed in the Statement of Affairs. These items are subject to orders 3 and 9(a) of the Consent Orders and are therefore the property of Ms Hashenko. However, I have considered the fact that Mr White appears to have approximately $112,000 in superannuation, as well as being employed on a salary of $112,008 per annum (excluding superannuation).

55    The Statement of Affairs indicates, as noted above, that Mr White had liabilities of approximately $72,700 to unsecured credit card providers.

56    The Original and Amended Financial Statements disclosed the following:

(1)    Under the heading “Part B Financial Summary”:

(2)    Under the heading “Part I Property owned by you”, Mr White listed:

(a)    The South Wentworthville Property registered in 50% shares with Ms Hashenko. Mr White stated the value of his share of the South Wentworthville Property was $600,000 in the March Financial Statement and $875,000 in the July Financial Statement.

(b)    The Cape Town Property.

(c)    Bank accounts with cash in hand of $8,492 in the March Financial Statement and $494 in the July Financial Statement.

57    I note two matters concerning the contents of Mr White’s Financial Statements. First, his “B Total personal expenditure …” includes $1,000 for repayments on the mortgage of the South Wentworthville Property. Second, the increase in the item at B from $2,080.50 per week to $4,241 per week is attributable to Mr White including the following under “Part O additional information” in his Amended Financial Statement:

I also pay the following additional expenses (weekly) for myself and the children including:

These items are not included in “Part N” of the Amended Financial Statement, being “orders for maintenance, child support, financial enforcement”. Mr White was not cross-examined on the contents of his Financial Statements or the reasonableness of the above expenses.

58    As I have said above, the focus of the evidence concerning Mr White’s solvency at the time he presented his petition was upon his net assets. This was a misconception of the test for solvency. The Trustee, Mr Gollant, agreed that the test for solvency in accordance with s 5(2) of the Bankruptcy Act depended upon an analysis of whether the putative bankrupt is able to pay all of his or her debts as and when they become due and payable. However, Mr Gollant did not undertake any solvency analysis on a cash flow basis. Mr Gollant explained that once the debtor’s petition had been accepted by the Official Trustee, he was not required to conduct a solvency analysis on a cash flow basis.

59    Mr Gollant agreed that Mr White’s principal creditors were credit card providers who were owed in total approximately $72,000. He also agreed that generally credit card providers would not require repayment in full if periodic interest payments and other fees were paid by the credit card holder in accordance with arrangements. Notwithstanding the absence of any cash flow solvency analysis, Mr Gollant opined that Mr White was insolvent at the time he presented his petition. After agreeing with the proposition that the total amount owing on a credit card is not generally immediately due and payable if the borrower is complying with specified arrangements, the following exchange took place between counsel and Mr Gollant:

MR MARTIN: Yes, your Honour. Thank you. Having just answered his Honour’s question in that way, Mr Gollant, do you still maintain the view you expressed in your affidavit that Mr White is plainly insolvent at paragraph 47 at the date of presentation of his debtor’s petition?

MR GOLLANT: That was my position at the time, Mr Martin. I don’t disagree with that. I will look at the file and, in terms of what comes to me, you’re putting it through the filter that you’re doing now is something that – that’s a decision that Mr White made when he presented his petition. When I’m dealing with the matter, I see that there are claims, there – I think – and correct me if I’m wrong, the fact that he’s now presented his petition, the creditors have been notified; those claims are now due and payable by result of his petition having been accepted and processed. Accordingly, when I prepared that affidavit, Mr Martin, my view was, “here’s a bundle of assets, and the answer is other than a small contribution that Mr White has been required to pay to this bankruptcy trustee, there are no other assets to satisfy those creditor claims, as they stood in March of 2018 or when I prepared that affidavit.” So, on my view of that position, within the bankruptcy construct, I’m happy to say that he was unable to pay those debts. You can look at it another way back in, what, January of 2018, perhaps, before he presented the petition, I don’t disagree with you in terms of your construct at that point in time. But in terms of me presented a report to assist the court – which was the purpose of it – at that point in time, Mr Martin had 72 grand worth of claims – I mean – sorry. Mr White had $72,000 worth of creditor claims and, effectively, no assets with which to satisfy those claims.

(emphasis added)

60    Mr Gollant’s above explanation is effectively that the presentation of Mr White’s petition rendered all monies owing on the credit cards immediately due and payable. Accordingly, it was sufficient to compare the liabilities owing on the credit cards and compare the assets available to meet the total amount outstanding.

61    I accept that the presentation of Mr White’s debtor’s petition is likely to have rendered the total sums owing on the credit cards immediately due and payable, though the terms of the credit card arrangements between Mr White and the credit card providers were not in evidence. However, notwithstanding the acceleration of the payment of all monies owing, I do not accept that Mr White was insolvent. On the balance of probabilities, I find that Mr White was solvent even if the total credit card debt was due and payable, taking into account the Florida Property at a value of approximately $100,000 AUD. This is a crude assessment but is consistent with the analysis of Mr Gollant (albeit that his analysis did not include the Florida Property).

62    In my view, Mr White should not in these circumstances have presented his petition and I would annul the bankruptcy on this basis alone.

63    If, however, I am wrong in my conclusion that Mr White was insolvent, I would nevertheless annul the bankruptcy pursuant to s 153B(1) of the Bankruptcy Act on the grounds that the petition ought not to have been presented. For the reasons referred to below, I have concluded that Mr White presented the petition for an ulterior purpose, namely to frustrate the giving effect to of the Consent Orders in relation to the South Wentworthville Property.

Mr White’s collateral purpose for presenting debtor’s petition

64    Ms Hashenko submitted that even if Mr White was insolvent at the time of presentation of his petition, the bankruptcy should nonetheless be annulled as Mr White presented his petition for an improper purpose, namely, to defeat the effect of the Consent Orders.

65    Ms Hashenko relied on Beaman as analogous to the present case. In Beaman the timing of the bankrupt’s petition raised a suspicion that it was motivated by an ulterior purpose being to defeat the effect of a family law judgment in favour of the bankrupt’s ex-wife. The following statements of McKerracher J are instructive in the present case, though the wife was unsuccessful in her appeal.

At [90], his Honour said:

… even if the presentation of the Petition was an abuse of process, in the exercise of discretion, the Petition would only be annulled if, to do so, served some practical purpose…

At [92]-[95], his Honour added:

Substantially lying at the heart of Ms Beaman’s submissions was that Mr Bond was, in practical terms, a man of means, if not in the sense of having assets in his own name, then having access to substantial payments. There was, it is argued, no real need for him to be bankrupt and but for the Family Court order, he would not have presented the Petition.

In the context of the discretionary factors which should be taken into account in light of the unchallenged insolvency of Mr Bond, Ms Beaman drew on [65] of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2001 (the 2001 Bill) which provides that:

High-income debtors who are maintaining an expensive lifestyle and petition for bankruptcy with the aim of avoiding paying a particular creditor (eg, the ATO) will be among those targeted by this proposed amendment. If the Court believes that the debtor could make arrangements to pay the creditor, it could annul the bankruptcy as an abuse of process.

This is fleshed out further in [182] to [184] of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2002 which indicates that insertion of the new subsection undersubs 153B gives the Court the power to annul the bankruptcy:

182 … There is, at present, no test for insolvency in relation to a debtor’s petition filed under the Act. It is not proposed in the ordinary course that there be one. However, the amendment will enable the Court to annul a bankruptcy, even if the debtor is insolvent.

183    Some debtors who petition for bankruptcy may be technically insolvent, but could make arrangements to pay their debts. They choose not to while maintaining an expensive lifestyle. Section 153B, that is proposed to be amended, would make it clear that the Court can find that their petition is an abuse of process.

184    A person, for example, might have an income of $400,000, no assets and owe one creditor [eg, the ATO] $500,000. The creditor in such a situation will be able to argue that the bankruptcy should be annulled because the debtor has the capacity to pay the debt within a reasonable time, but appears to have chosen not to pay it while continuing to a lifestyle which absorbs all of his or her (often) very substantial income. The Court will not be able to rely on the person’s technical insolvency (inability to pay the debts as they become due and payable) to dismiss the application.

Ms Beaman argues with some force, that the present case is tailor made for the amendment as described in the Explanatory Memorandum to the 2001 Bill.

(Emphasis in original)

66    The factors set out above in bold support my conclusion that the bankruptcy should be annulled irrespective of whether Mr White is technically insolvent or not. As I note above, Mr White was employed at the time earning a significant salary.

67    Mr White said that he filed his petition as he considered himself insolvent. He stated he was motivated by his care for the children and his wish to ensure they were protected. He said that he believed that his inclusion of the South Wentworthville Property in his Statement of Affairs would not prevent the Consent Orders from being given effect.

68    I found Mr White’s evidence in relation to his reasons for presenting his debtor’s petition to be inconsistent and self-justifying. His evidence appeared rehearsed and contrived. He appeared careful in his answers to anticipate the consequences for his case. He frequently qualified his answers with an explanation of his conduct, which was inconsistent with the object consequences of his actions. His inclusion of the South Wentworthville Property in his Statement of Affairs without referring to the Consent Orders is an example of this inconsistency.

69    Mr White sought to explain his failure to sign the transfer documents for the South Wentworthville Property, and his inclusion of the Property in his Statement of Affairs as being in the best interests of his children. How he could have reached that conclusion is difficult to discern.

70    Mr White gave evidence that at the time he presented his debtor’s petition, he believed that the South Wentworthville Property would not form part of his bankrupt estate because the Consent Orders had been made:

HIS HONOUR: And just to be clear, Mr White, at that point was it your belief that the presentation of the petition, that is to say after the orders had been made in the Federal Circuit Court, would have no impact upon the transfer from you to your wife of the interest in the family home?---It was my belief at the time that because we had court orders in place even though we hadn’t signed on the dotted line for the actual transfer documents that the house would be protected because it was subjected to that court order.

Protected from what?---From being auctioned off. So, you know, protected from the bankruptcy because from my understanding and belief at the time if somebody has declared bankrupt, they potentially lose their home. So obviously I didn’t want the family to lose their home, ie, my children to lose the roof over their head. So I was under – I was under the belief that that court order was in place and would still go through after various conversations with my ex-wife. That that would still be protected because there was that court order in place.

Protected from being treated as part of your assets and therefore subject to being under the control of the trustee. Was that your belief?---Yes. Because I was under the belief that my unsecured assets and all that would be – basically the assets that would be subject to my bankruptcy.

Well, Mr White, if that’s the case why are we here?---You’re asking the wrong person, your Honour.

Well, I don’t think I am. You see, if the bankruptcy, as far as you were concerned, was not to effect [sic] your interest in the matrimonial home because orders had already been made though not effected in terms of the transfer of the title then your estate that the trustee would have access to, to pay your creditors would not include the family home or your interest in the family home. That follows, does it not?---Yes. Yes, your Honour.

And if that was your belief why didn’t you say to the trustee that you had already disposed of your interest in the family home through consenting to orders in the Circuit Court. It’s just that you hadn’t yet perfected the transfer of that interest by signing the necessary documents?---So when I spoke to the person who was the official trustee at the time I lodged my application for – well, my petition, I did disclose to them that there were court orders in place and I was under the impression they would be protected. Because the caveat was only put on the property by Mr Gollant when he was put into place as my official trustee back in – that was in the March. I was under the impression that – well, I said to the contact person in AFSA, I think. The official trustee that was based in Queensland, that, I informed them that there was a court order in place, and I was under the impression that that would protect the property. I’ve always maintained that I did not declare myself bankrupt as a means to hold onto the property or anything like that. I have no – I never had any intention to hold onto the property. The property is the legacy for my children and that should always be with them.

Does that mean you’re ready, willing, and able to sign a transfer document here and now, does it?---Yes.

Well, again - - -?---However, just for point. I’ve actually been instructed by my trustee that I don’t have the power to sign the document which has been the bone of contention for well over a year now with the legal representative of the applicant.

So is it your evidence – we need to be very clear about this, Mr White? Is it your evidence that the reason you haven’t signed the documents to transfer your interest in the family home - that the subject of the orders made by consent was because you were told not to by the trustees?---And addition to the fact that I - - -

No, just answer that question?---Yes.

Right?---As I sit right here now. Yes.

71    I do not accept Mr White’s above evidence. It is inconsistent with this inclusion of his interest in the South Wentworthville Property in his Statement of Affairs and with his subsequent Review Application. It is also inconsistent with what he said at the case management hearing before Rares J on 28 August 2018 referred to above at [23].

72    I found Mr White to be an unreliable witness who was inclined to make self-serving statements. He was vague in his answers to questions that might expose a contrary explanation for his actions. This is evident from the above quoted passage in which Mr White was unable to offer any explanation for not informing the Trustee at the outset that he had consented to orders transferring his interest in the South Wentworthville Property to Ms Hashenko, other than to say he thought he had said something to that effect to the contact person at AFSA. I do not accept that Mr White was “under the impression”, as he put it, that the Property would be protected from bankruptcy. Neither do I accept the self-serving statement, which was not in any event responsive to the questions I had asked him, that:

I’ve always maintained that I did not declare myself bankrupt as a means to hold onto the property or anything like that. I have no – I never had any intention to hold onto the property. The property is the legacy for my children and that should always be with them.

73    In my view, Mr White’s denial of the true position is rather an admission of his consciousness of his true purpose, which was to frustrate the giving effect to of the Consent Orders. Mr White’s subsequent conduct, such as including the South Wentworthville Property in his Statement of Affairs, making the Review Application and the absence of any protest on his part concerning the Trustee’s treatment of the Property as part of his bankrupt estate, is not consistent with a belief that the Property was protected from his bankruptcy. Rather, in my view, Mr White’s conduct is consistent with a desire to frustrate or undo what he had agreed to with Ms Hashenko in settlement of the Circuit Court proceeding.

74    As the bankruptcy took its course, Mr White may have had a change of mind in relation to compliance with the Consent Orders, but that is unclear. The Trustee had threatened to seek an order dismissing the Review Application on the basis that Mr White had no standing to make the Application insofar as it related to the South Wentworthville Property as his interest had vested in the Trustee. That may have been the impetus for Mr White discontinuing that Application, but by making the Review Application Mr White had communicated to the Trustee that he disputed the enforceability of the Consent Orders and therefore left open a claim to his interest in the South Wentworthville Property by the Trustee.

75    Mr White’s actions were therefore inconsistent with any belief that the Property was protected from his bankruptcy or a desire to preserve the property as a legacy for his children. In my view, Mr White’s erratic behaviour in, on the one hand, agreeing to the Consent Orders, and on the other, in effect seeking to set them aside, is consistent with the erratic behaviour of a marital partner disappointed in the settlement of a family law dispute.

76    For these reasons, I find that Mr White’s motivation for presenting his debtor’s petition was to frustrate the giving effect to of the Consent Orders, and accordingly his bankruptcy should be annulled.

costs

Ms Hashenko

77    Mr White should pay Ms Hashenko’s costs of and incidental to this proceeding having regard to the conclusions I have reached. I have considered whether to award costs against Mr White on an indemnity basis, but having regard to all of the circumstances, including the position taken by the Trustee to which I shall refer below and the availability of a potential alternative application to the Circuit Court pursuant to s 106A of the Family Court Act, I shall not do so.

78    In relation to s 106A of the Family Court Act, I should indicate that the availability of a remedy under that section does not detract from the legitimacy of the present application. Indeed, in my view the Trustee’s position in pressing Ms Hashenko to make an application under s 106A would not have been an effective alternative to the present application for an annulment while Mr White sought to impugn the Consent Orders. It is very likely that while the present proceeding for annulment remained on foot, an application under s 106A for an order that a court officer sign the necessary transfer would be stayed, unless the Trustee were to indicate that he made no claim in relation to the South Wentworthville Property. Indeed, Ms Hashenko did eventually make an application to the Circuit Court for an order under s 106A, which appears to have been stayed, or at least kept in abeyance, pending the determination of the present proceeding.

The Trustee’s Costs

79    The Trustee submitted that he should have his costs of this proceeding from Ms Hashenko as well as the costs of administering Mr White’s bankruptcy. I disagree. The Trustee should not be entitled to recover any costs from Ms Hashenko, nor should he have any resort to the South Wentworthville Property for the recovery of his costs of the proceeding or costs incurred in administering the bankrupt estate of Mr White.

80    First, had the Trustee inquired further into the basis of the Consent Orders, he would have discovered that, in the absence of any vitiating conduct such as duress, Mr White’s beneficial interest in the South Wentworthville Property had been conveyed to Ms Hashenko prior to the bankruptcy as a result of a bona fide settlement of a family law dispute. He should have thus concluded that the transfer of the legal title be signed by Mr White, or if he was not willing to do so, at least indicated that he did not oppose orders being made pursuant to s 106A.

81    Further, the Trustee became aware of Mr White’s change of mind about the Review Application, at the latest, on 3 September 2019, because of Mr White’s discontinuance of that Application. This removed any substantive impediment to giving effect to the Consent Orders. At that time, the Trustee should have informed Ms Hashenko that he would consent, or not oppose, Mr White signing the necessary documents to transfer Mr White’s interest in the South Wentworthville Property to Ms Hashenko. Alternatively, if Mr White was prepared to sign the transfer documents at that time, the Trustee should have consented to him doing so. Instead, the Trustee insisted to Ms Hashenko’s solicitors, BNL, that she should make an application to the Family Court for an order that a registrar of that Court sign the necessary documentation to effect the transfer. The question that comes immediately to mind is, why? Why should the Trustee have not consented to Mr White executing transfer documents in compliance with the Consent Orders?

82    In his evidence, Mr White said that he had informed the Trustee of his preparedness to sign a transfer of the South Wentworthville Property. Mr White’s evidence about such change of mind was vague and I do not accept it. The Trustee’s evidence was that Mr White was not consistent in his position in relation to the Property. I accept the Trustee’s evidence in this regard. However, as I have said, once Mr White discontinued the Review Application, there was no impediment to the Trustee’s consent to Mr White signing the transfer, assuming that he was genuinely prepared to do so, or at least informing Ms Hashenko that he would consent to an order pursuant to s 106A of the Family Law Act.

83    Rather than doing any of the above, the Trustee obfuscated without giving any apparent consideration to the legitimacy of Ms Hashenko’s claim to enforce the Consent Orders. I find the Trustee’s apparent unpreparedness to consider whether Mr White’s interest in the South Wentworthville Property was disposed of, pursuant to the Consent Orders prior to the presentation of the Debtor’s position, quite unsatisfactory. However, I have some sympathy for the Trustee’s position, as I accept the evidence of the Trustee that Mr White had been conveying inconsistent statements about his attitude towards complying with the Consent Orders. Such inconsistency, however, ceased upon Mr White discontinuing the Review Application. Notwithstanding, I consider that Mr White should pay the Trustee’s costs of this proceeding and of the administration of the Bankruptcy because it was his wrongdoing in commencing his own bankruptcy for the collateral purpose of frustrating the giving of effect to the Consent Orders which was the genesis of the dispute that followed.

84    In my view, Ms Hashenko has been wrongly deprived of her legitimate expectation that the agreement she reached with Mr White be given effect to by compliance with the Consent Orders. Lamentably, she has been met with erratic obfuscation and resistance by Mr White, combined with a failure by the Trustee to give consideration to the legitimacy of her agreement, notwithstanding that the Trustee became aware of the Consent Orders, as well as reason to be doubtful about Mr White’s bona fides (for example, his omission of the Cape Town Property from his Statement of Affairs) a short time after being appointed as Mr White’s official trustee. Thus, there were two separate, but largely concurrent streams of conduct, by Mr White and the Trustee respectively, which have served to deprive Ms Hashenko of the benefit of the settlement agreement reflected in the Consent Orders. For the above reasons, the Trustee’s costs of this proceeding and of the bankruptcy generally should be paid by the person who initiated the bankruptcy by lodging his own petition for a collateral purpose, namely, Mr White.

Disposition

85    For the above reasons, there will be an order annulling the bankruptcy of Mr White. I will order that Mr White pay Ms Hashenko’s costs of this proceeding and the costs of the Trustee of this proceeding and of the administration of his bankrupt estate.

86    I will reserve liberty to apply to Ms Hashenko by no later than 15 February 2021 to seek such consequential orders as she may be advised in relation to any discretion of Mr White to execute a transfer of his legal title to the South Wentworthville Property to Ms Hashenko.

Associate:

Dated:    22 December 2020