Federal Court of Australia

Duckworth v Field [2023] FCA 801

ORDERS

THE COURT ORDERS THAT:

1.    The respondent withdraw the objection to discharge dated 6 February 2020 forthwith.

2.    The originating application dated 17 March 2023 and the interlocutory application dated 17 March 2023 are otherwise dismissed.

THE COURT NOTES THAT:

A.    Pursuant to s 149A(3) of the Bankruptcy Act 1966 (Cth) the applicant is taken to be discharged from bankruptcy upon the objection being withdrawn.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    Mr Neil Duckworth was made bankrupt on 29 September 2017 by a sequestration order made by the (then) Federal Circuit Court: Water Corporation v Duckworth [2017] FCCA 2216. The Official Trustee was appointed his trustee in bankruptcy at that time. In the ordinary course, pursuant to s 149 of the Bankruptcy Act 1966 (Cth) (automatic discharge), Mr Duckworth would have been discharged from bankruptcy on about 14 October 2020, being three years from when he provided his completed statement of affairs to the Official Receiver.

2    However, on 6 February 2020 the respondent, who by then was the Trustee, filed an objection to Mr Duckworth's discharge from bankruptcy on the grounds that Mr Duckworth failed to comply with his statutory obligation to disclose particulars of income or expenditure. The effect of the notice of objection was that pursuant to s 149A(2) of the Bankruptcy Act, the period of Mr Duckworth's bankruptcy was extended to eight years, with an expected date of discharge in October 2025.

3    To be bankrupt for a period of eight years is no small thing. Unsurprisingly, there are steps that can be taken by a bankrupt to challenge a decision by a trustee to object to their discharge.

4    In this case, Mr Duckworth has applied to this Court for orders that the objection be 'removed' and that certain requests by the trust for payment 'be dismissed as unlawful'. He is self-represented. Although served with the application and informed of the time and date of the first case management hearing, the Trustee has declined to participate in the proceeding. The Trustee said that he would be overseas at the time of the first case management hearing. He wrote to the Court stating:

In my view and after looking at the applicant's materials there is no basis upon which the [trustee's] objection to discharge should be withdrawn. That said, I will accept her Honour's determination in due course in relation to that matter. The estate is unfunded and will not be legally represented.

5    It is to be recalled that a trustee in bankruptcy is in the position of an officer of the Court: Macchia v Nilant [2001] FCA 7; (2001) 110 FCR 101; and Mango Boulevard Pty Ltd v Whitton [2015] FCA 1169; (2015) 242 FCR 331 at [141]. As is apparent from the email, the Trustee did not address why the objection should not be withdrawn, nor actively oppose such a course. It is also apparent that because the estate is unfunded, there is unlikely to be any further work undertaken by the Trustee during the balance of the extended period of Mr Duckworth's bankruptcy. I will return to these matters.

6    It is useful to first set out the relevant statutory framework.

Statutory framework

7    By s 149A, a discharge from bankruptcy under s 149 does not operate if an objection to discharge takes effect. Instead the bankruptcy continues for a further prescribed period unless, at an earlier time, the trustee withdraws the notice of objection (as contemplated by s 149J), the Inspector-General cancels it (as contemplated by s 149N) or the Court orders the trustee to withdraw the notice of objection.

8    The following provisions of the Bankruptcy Act relevantly address the power of a trustee to object to a discharge from bankruptcy:

149B    Objection to discharge

(1)    Subject to the following provisions of this Subdivision, at any time before a bankrupt is discharged from bankruptcy under section 149, the trustee may file with the Official Receiver a written notice of objection to the discharge.

(2)    The trustee of a bankrupt's estate must file a notice of objection to the discharge if the trustee believes:

(a)    that doing so will help make the bankrupt discharge a duty that the bankrupt has not discharged; and

(b)    that there is no other way for the trustee to induce the bankrupt to discharge any duties that the bankrupt has not discharged.

149C    Form of notice of objection

(1)    A notice of objection must:

(a)    set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and

(b)    refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds; and

(c)    state the reasons of the trustee for objecting to the discharge on that ground or those grounds.

(1A)    Paragraph (1)(c) does not apply to a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).

(2)    A notice of objection is not invalid merely because it does not state the ground or grounds of objection precisely as set out in subsection 149D(1) provided that the ground or grounds can reasonably be identified from the terms of the notice.

149D    Grounds of objection

(1)    The grounds of objection that may be set out in a notice of objection are as follows:

(a)    the bankrupt has, whether before, on or after the date of the bankruptcy, left Australia and has not returned to Australia;

…

(d)    the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, income or expected income, failed to comply with the request;

(da)    after the date of the bankruptcy, the bankrupt intentionally provided false or misleading information to the trustee;

(e)    the bankrupt failed to disclose any particulars of income or expected income as required by a provision of this Act referred to in subsection 6A(1) or by section 139U;

(f)    the bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG;

…

9    It is s 149(1)(e) that is relevant in this case. As is apparent from that provision, s 139U requires a bankrupt to provide certain financial information. It relevantly provides:

139U    Bankrupt to provide evidence of income

(1)    A bankrupt must, as soon as practicable, and in any event not later than 21 days, after the end of a contribution assessment period, give to the trustee:

(a)    a statement:

(i)    setting out particulars of all the income that was derived by the bankrupt during that contribution assessment period; and

(ia)    setting out particulars of all the income that was derived by each dependant of the bankrupt during that contribution assessment period; and

(ii)    indicating what income (if any) the bankrupt expects to derive during the next contribution assessment period; and

(iii)    indicating what income (if any) the bankrupt expects each dependant of the bankrupt to derive during the next contribution assessment period; and

(b)    such books evidencing the derivation of the income referred to in subparagraph (a)(i) as are in the possession of the bankrupt or the bankrupt can readily obtain.

Penalty: Imprisonment for 6 months.

(2)    The particulars that a bankrupt is required to include in a statement given to the trustee under subparagraphs (1)(a)(i) and (ia) are all the particulars that are known to the bankrupt and any particulars that the bankrupt can readily obtain.

(3)    Without limiting the generality of paragraph (1)(b), the books that a bankrupt is required to give to the trustee under that paragraph in respect of a contribution assessment period include:

(a)    if the bankrupt received from his or her employer one or more pay slips or other documents evidencing salary or wages paid to him or her by that employer during that period--that document or each of those documents; and

(b)    any copy of a group certificate or payment summary (within the meaning of section 16-170 in Schedule 1 to the Taxation Administration Act 1953) in the possession of the bankrupt that relates in whole or in part to that period; and

(c)    any statement provided to the bankrupt by an ADI or other financial institution that shows periodic payments made during that period to an account kept by the bankrupt (either alone or jointly with any other person) with that institution; and

(d)    any notice of assessment issued to the bankrupt under the Income Tax Assessment Act 1936 in respect of a year of income in which that period is included; and

(e)    if the bankrupt is in receipt of a pension, allowance or other benefit under a law of the Commonwealth, of a State or of a Territory - any letter or other document sent or given to the bankrupt by the Department or authority that administers the legislation or scheme under which the benefit is provided.

10    The reference to contribution assessment periods (CAPs) in s 139U is relevant to this application.

11    Relevantly, had Mr Duckworth's bankruptcy continued for the usual three year period, he would have been required under s 139U to provide to the Trustee financial information relating to the following CAPs:

(a)    29 September 2017 to 28 September 2018 (CAP1);

(b)    29 September 2018 to 28 September 2019 (CAP2); and

(c)    29 September 2019 to 28 September 2020 (CAP3).

12    Where the period of bankruptcy is extended, CAPs continue to accrue until the date of discharge from bankruptcy.

13    The obligation on a trustee to make an assessment of income and any contribution for each CAP is found in s 139W. Section 139W(2) provides for fresh assessments to be made, and s 139WA provides that an assessment or fresh assessment can be made at any time, including after a CAP and after discharge from bankruptcy.

The notice of objection

14    On 6 February 2020 the Trustee issued the notice of objection, which states:

An objection to your discharge from bankruptcy has been filed by your trustee in bankruptcy, Mr Malcolm Field, this means that your bankruptcy period has been extended.

The National Personal Insolvency Index now shows that an objection has been filed against your discharge.

You filed your Bankruptcy Form on 05-Dec-2017, therefore your expected date of discharge is now 06-Dec-2025.

The grounds for filing the objection, evidence in support of each ground, and reasons (where applicable), are referred to below:

Grounds for filing:

Paragraph 149D(1)(e) of the Act:

The bankrupt failed to disclose any particulars of income or expected income as required by a provision of this Act referred to in subsection 6A(1) or by section 139U

Evidence

Letter dated 1 August 2019, following up on CAP 1 information (initially requested by previous trustee)

Letter dated 15 January 2020, following up on CAP 1 and requesting information on CAP 2

Email dated 22 January 2020, informing the Bankrupt that even if he does not collect wages and is retired, he is still required to provide an ICQ [income contribution questionnaire] and bank statements.

Correspondence with Trustee

15    As indicated above, Mr Duckworth was made bankrupt on 29 September 2017. On 6 October 2017 a representative of the Official Receiver wrote to Mr Duckworth, enclosing a statement of affairs to be completed and returned. Mr Duckworth did so on or about 14 October 2017. He disclosed unsecured creditors in the sum of $2,000,027.

16    On 15 December 2017 Ms Leonie Hale on behalf of the Official Trustee wrote to Mr Duckworth. Relevantly, Ms Hale advised that the Official Trustee had made an assessment of Mr Duckworth's obligation to make income contribution payments to his bankrupt estate pursuant to s 139W of the Bankruptcy Act for the three relevant CAPs of Mr Duckworth's bankruptcy and, based on the statement of affairs and supporting documentation, the Official Trustee had determined that Mr Duckworth was not required to make compulsory income contributions to his bankrupt estate 'at this time'. It was assumed for the purpose of the assessment that there would be no significant variations in income over the course of the bankruptcy. The letter also informed Mr Duckworth that he was to advise the Official Trustee if his financial circumstances changed. It also stated that while Mr Duckworth remained bankrupt he would be required to supply information about his income to the Official Trustee, and that failure to provide such information could result in an objection to his discharge from bankruptcy.

17    On 8 March 2018 Ronald Gamble replaced the Official Trustee as the trustee of Mr Duckworth's bankrupt estate. Mr Gamble wrote to Mr Duckworth on 8 October 2018, stating that Mr Duckworth was required to provide evidence of his income on an annual basis and that failure to do so within 21 days of the end of a CAP would be an offence and a ground for lodging and objection to discharge from bankruptcy. Mr Gamble enclosed an income questionnaire relating to the actual income derived by Mr Duckworth for CAP1 and to the estimated income to be derived for CAP2. Mr Gamble asked Mr Duckworth to return the questionnaire with supporting documents by 19 October 2018.

18    On 12 June 2019 the Trustee replaced Mr Gamble as the trustee in bankruptcy of Mr Duckworth's estate.

19    On 1 August 2019 the Trustee wrote to Mr Duckworth referring to the previous correspondence from Mr Gamble to Mr Duckworth and noting that Mr Duckworth had not provided a completed income contribution questionnaire (ICQ) to date. The Trustee noted that Mr Duckworth had said in a previous email that he had no income for the period, but said that he was still required to provide documents as requested. The Trustee asked Mr Duckworth to provide the completed ICQ along with bank statements and evidence of any income derived during the relevant period by no later than 15 August 2019.

20    The Trustee said that he could lodge an objection to Mr Duckworth's discharge from bankruptcy pursuant to s 149D of the Bankruptcy Act if he failed to provide details of property or income when requested. He also said that an objection would have the effect of extending the period of bankruptcy to up to eight years.

21    On 15 January 2020 the Trustee wrote to Mr Duckworth referring to his prior letter of 1 August 2019, and noting that no response had been received. The Trustee attached an ICQ for CAP1 and CAP2 and asked Mr Duckworth to complete and return them to him, along with evidence of his income including bank statements and income tax returns, as well as pay slips if applicable. The Trustee stated that he required particulars of income that was actually earned during those CAPs and an estimate of the income that was expected to be received over CAP3. He reiterated that an objection to discharge could be lodged if the information was not received.

22    On 22 January 2020, according to the notice of objection, the Trustee informed Mr Duckworth that even if he does not collect wages and is retired, he is still required to provide an ICQ and bank statements (the email was not before the Court).

23    On 6 February 2020 the Trustee filed an objection to Mr Duckworth's discharge from bankruptcy on the grounds that Mr Duckworth failed to disclose any particulars of income or expenditure as required by s 6A(1) and s 139U of the Bankruptcy Act.

24    On 28 September 2022 Mr Duckworth signed an ICQ for the period 29 September 2021 to 28 September 2022 (being by that time CAP5), stating that no income was received in the period. My review of the materials filed by Mr Duckworth indicates that this is the only ICQ before the Court. On the same date Mr Duckworth asked the Trustee of the requirements to have the objection to his bankruptcy discharge removed.

25    On 3 October 2022 Mariana Pereira (from the same accounting firm as the Trustee) thanked Mr Duckworth by email for providing the ICQ for CAP5, but stated that the Trustee required evidence such as bank statements as a minimum. Ms Pereira requested that they be provided from September 2020 to 3 October 2022.

26    Mr Duckworth replied that day, stating that the only bank account he has is with Suncorp and that he has already furnished those records. He said that be believed the Trustee had direct access to the Australian Taxation Office records, and that the funds he needed (I infer for his day-to-day expenses) were derived from '[his] companies at that time and always under taxable income'. By separate email he informed Ms Pereira that he was 75 years old at the time 'and retirement age is 65'.

27    Ms Pereira replied on 3 October 2022 to the effect that having reviewed the Trustee's records and the statements provided by Mr Duckworth, such records were for the period only up to March 2020. On behalf of the Trustee she requested bank statements from March 2020 to 3 October 2022. It appears from an email dated 5 October 2022 that Mr Duckworth then emailed Ms Pereira and provided a PDF titled 'Suncorp Statements'. However, the statements were not in evidence.

28    On 5 October 2022 Ms Pereira asked Mr Duckworth by email whether he received a government pension. Mr Duckworth replied, although he did not answer that question and instead asked when he Trustee would lodge a discharge of the objection in his bankruptcy.

29    On 6 October 2022 Ms Pereira replied, stating that the Trustee considered there were currently no grounds to remove the objection as the information provided to date had not been satisfactory and Mr Duckworth had 'continued to make threats which is inappropriate'. Ms Pereira indicated that the Trustee did not intend to remove the objection at that time.

Correspondence with AFSA

30    It appears that Mr Duckworth wrote to AFSA on 31 October 2022. The email was not before the Court. Gareth Brown, an Acting Assistant Director in the Enforcement and Practitioner Supervision group of the AFSA, replied on 3 November 2022, and from that reply it appears that Mr Duckworth asked the Inspector General in bankruptcy to exercise its discretion to undertake an own initiative review of the objection pursuant to s 149K(1)(a) of the Bankruptcy Act. Mr Brown replied to Mr Duckworth, stating relevantly that:

You have not provided evidence to show that you fully responded to the information requests referenced in the objection notice, prior to the notice being lodged. You have also not provided evidence that you had a 'reasonable excuse' under section 149N(1A) of the Act, for failing to respond to those requests when required. While you have indicated that you have subsequently provided to the trustee the information sought in those requests, that does not mean that the objection notice was not validly lodged, and the IG is not empowered to cancel an objection based on a special ground simply because a bankrupt has remedied the conduct that led to the objection. Therefore, you have not provided sufficient basis to justify the IG undertaking a review. If there is any further information [you] wish the IG to consider, please forward this to me by 21 November 2022.

It is an expectation that a trustee will consider withdrawing an objection when compliance with the action or inaction that led to the objection has been achieved, unless there is further utility in the objection remaining in place.

…

Please note that the Inspector-General in Bankruptcy is not empowered to order a trustee to act in a particular manner or to cease from taking an action in a particular circumstance. Such orders can only be issued on application to the Federal Circuit Court or the Federal Court under Section 90-15 of Schedule 2 to the Bankruptcy Act 1966 (the Act) …

31    I note that Mr Brown's reference to the inability to take into account conduct that subsequently remedies an objection notice is presumably a reference to s 149N(1B) of the Bankruptcy Act, a provision which does not apply in the case of an application to Court: Nguyen v Pattison [2005] FCA 650 at [85] (Weinberg J).

Communications with Ms Quirk and potential compromise

32    On 30 November 2022 Ms Janice Quirk wrote to the Trustee, apparently on behalf of Mr Duckworth, stating that Mr Duckworth has only one creditor and that friends would pay that creditor out. She requested a copy of an invoice for the amount.

33    The Trustee replied to Ms Quirk, identifying that the relevant creditor was a law firm which was owed $21,256. He said that the costs of the estate amount to a further $20,000. The Trustee said he was willing to withdraw the objection to discharge of the bankrupt if the amount of $21,256 was paid to the law firm, and $20,000 was paid to the bankrupt estate on or before 12 December 2022.

34    Ms Quirk responded to the effect that she would pay $5,000 to have the objection removed immediately, with the balance to be paid on or before the end of February 2023.

35    On 30 November 2022 Ms Pereira replied to Ms Quirk, stating that the Trustee would only withdraw the objection to discharge upon full payment.

36    There was then a chain of communications between Ms Quirk and the Trustee's office where it appears that Ms Quirk was suggesting that a compromise might be entered into under s 73 of the Bankruptcy Act (composition or arrangement with creditors). Nothing came of that, although the Trustee indicated that if a draft proposal were provided he would look at it. Further, it was explained to Mr Duckworth that any composition did not lead to an annulment of a bankruptcy, and that a creditors meeting would need to be called (with additional expense) for the purpose of considering any composition.

37    I refer to this evidence for two reasons. First, it reveals that there was apparently only one external creditor of the estate at this point. Second, Mr Duckworth has criticised the Trustee for 'demanding' payment in exchange for withdrawing the notice of discharge. However, it is apparent on its face that the Trustee was attempting to negotiate an end to the dispute about the withdrawal of the notice of discharge, and he considered the option of payment of the creditor and the estate's costs as a means to bring the ongoing dispute to an end. I make no finding adverse to the Trustee, having regard to the evidence before me.

This application

38    The next event was that Mr Duckworth filed this application in March 2023. He also filed an application seeking urgent relief. I listed the applications for a case management hearing and took the opportunity to inform Mr Duckworth that his evidence was deficient in that (at least) he needed to provide copies of the notice of objection, the documents referred to in the notice of objection, the various email chains and documents that he referred to in his original affidavit (that was a hybrid submission/affidavit), together with any other documents he considered relevant. I made an order to that effect on 2 June 2023. Mr Duckworth subsequently filed a supplementary affidavit.

39    Although I informed Mr Duckworth that such applications are generally dealt with by oral hearing, he requested that I deal with it on the papers, saying that he had nothing further to add.

Consideration

40    The patchy nature of the evidence before me from Mr Duckworth, and the absence of any evidence from the Trustee, has left me in a position where it has been necessary to make assumptions and draw a number of inferences, as is apparent in the following reasons.

41    Mr Duckworth makes no complaint about the form of the notice of objection itself. Because the Trustee relied on s 149D(1)(e) by way of the ground of objection, there was no obligation to provide reasons for issuing the notice: s 149C(1A). As Rangiah J observed in Mango Boulevard (at [134]), s 149C(1A) does not remove the necessity for a trustee to have reasons to issue a notice of objection, but there is no obligation to state them in the notice.

42    Section 149C(1)(b) also required the Trustee to refer to the evidence or other material that in the opinion of the Trustee establishes the ground relied upon. As explained in Smith v Trustee of the Property of Richard John Smith (a bankrupt) [2023] FCA 300 at [44] (Collier J), the notice must put the bankrupt in a position where they can identify, and if necessary search out, the evidence relied upon for the objection. In this case, the two letters referred to in the notice of objection were in the possession of Mr Duckworth and they explained in clear terms that the failure to provide the requested information founded the issue of the notice. The 1 August 2019 letter expressly asked for the ICQs and supporting documents, including bank statements, to be provided. The 15 January 2020 letter noted the lack of reply to the 1 August 2019 letter and again expressly sought the completion of the ICQs and supporting documents, including bank statements.

43    There is no question that Mr Gamble and the Trustee were entitled to ask Mr Duckworth to provide the requested information, and he was obliged to comply: s 139U of the Bankruptcy Act. Bank statements fall within the 'books' that might evidence income ('books' is defined broadly in s 5 of the Bankruptcy Act, and includes accounts). Mr Duckworth appears to rely on the initial letter from the Official Trustee's office of 15 December 2017 to assert that he was not obliged to make income contributions, and so was not obliged to provide further information. Such a submission ignores the information provided by Ms Hale to the effect that he would continue to be required to provide information about his income during the course of his bankruptcy. More importantly, it ignores the operation of s 139WA (see [13] above).

44    The provision of the 1 August 2019 letter and non-compliance with that letter are sufficient in the present circumstances for me to proceed on the basis that the notice of objection was validly issued.

45    It follows, and I infer, that Mr Duckworth's real complaint is that the trustee has more recently refused to withdraw the objection. Whilst one could consider the refusal to withdraw the objection to be a continuing act over a period of time, I proceed on the basis that the decision reflected in the email to Mr Duckworth of 6 October 2022 is the relevant action of the Trustee for the purpose of this application. The Court considered such an application in Frost v Sheahan [2005] FCA 1014 (affirmed on appeal - Frost v Sheahan (Trustee) [2009] FCAFC 20 (Frost FCAFC)). It was accepted that the trustee's refusal to withdraw the notices in that case constituted an act, omission or decision of the trustee within the meaning of (then) s 178, such that it could be reviewed having regard to the supervisory jurisdiction over the conduct of a trustee contemplated by that provision.

46    Section 178(1), prior to its repeal, provided that:

If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.

47    The section was repealed on 1 March 2017, being the same date on which the Insolvency Practice Schedule (Bankruptcy) (IPS) (being Schedule 2 to the Bankruptcy Act) came into operation.

48    Relevantly, s 90-15 of the IPS provides:

90-15    Court may make orders in relation to estate administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor's estate.

Orders on own initiative or on application

(2)    The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90-20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the administration of the estate;

(b)    an order that a person cease to be the trustee of the estate;

(c)    an order that another person be appointed as the trustee of the estate;

(d)    an order in relation to the costs of an action (including court action) taken by the trustee of the estate or another person in relation to the administration of the estate;

(e)    an order in relation to any loss that the estate has sustained because of a breach of duty by the trustee;

(f)    an order in relation to remuneration, including an order requiring a person to repay to the estate of a regulated debtor, or the creditors of a regulated debtor, remuneration paid to the person as trustee.

Matters that may be taken into account

(4)    Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a)    whether the trustee has faithfully performed, or is faithfully performing, the trustee's duties; and

(b)    whether an action or failure to act by the trustee is in compliance with this Act and the Insolvency Practice Rules; and

(c)    whether an action or failure to act by the trustee is in compliance with an order of the Court; and

(d)    whether the regulated debtor's estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and

(e)    the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group.

Costs orders

(5)    Without limiting subsection (1), an order mentioned in paragraph (3)(d) in relation to the costs of an action may include an order that:

(a)    the trustee or another person is personally liable for some or all of those costs; and

(b)    the trustee or another person is not entitled to be reimbursed by the regulated debtor's estate or creditors in relation to some or all of those costs.

Orders to make good loss sustained because of a breach of duty

(6)    Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:

(a)    the trustee is personally liable to make good some or all of the loss; and

(b)    the trustee is not entitled to be reimbursed by the regulated debtor's estate or creditors in relation to the amount made good.

Section does not limit Court's powers

(7)    This section does not limit the Court's powers under any other provision of this Act, or under any other law.

49    It was well established that under s 178, the Court had a wide discretion to make such order as was appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10 (Deane J); and see generally Frost FCAFC at [8].

50    In Booth v Offerman as trustee of the bankrupt estate of Geoffrey David Booth [2019] FCA 5 at [4], Robertson J observed that the jurisdiction in s 90-15 of the IPS used to be found in s 178 of the Bankruptcy Act. His Honour continued:

[5]    For present purposes it is not necessary to compare the new and old bases of the Court's jurisdiction. It does not appear that any change was intended from the position described by Deane J in Re Tyndall; ex parte Official Receiver [1977] FCA 15; 17 ALR 182 at 186-187 to the effect that there is conferred upon the Court the widest possible discretion as to the appropriate order which should be made in the particular case and that the [Court] was empowered and obliged to make such order in the matter as it thinks just and equitable. Deane J rejected the approach that the Court was only empowered to interfere with the trustee's act, omission or decision if it was of the view that the trustee had acted absurdly or unreasonably or in bad faith.

51    I consider that the authorities with respect to s 178 continue to guide the exercise of the Court's jurisdiction under s 90-15 of the IPS.

52    As to standing, s 90-20 provides relevantly that a person with a financial interest in the administration of a regulated debtor's estate may apply for an order under s 90-15. Pursuant to the definition in s 5-30 of a 'financial interest', it is clear that Mr Duckworth as the bankrupt has standing under s 90-20 to apply for relief: Frigger v Trenfield [2019] FCA 1746 at [12] (Jackson J).

53    Separately, I note that in Smith v Trustee of the Property of Richard John Smith, Collier J relied on s 30(1) of the Bankruptcy Act in declaring that a notice of objection to discharge issued under s 149B was invalid and of no effect. Section 30(1) grants to the Court broad general powers in bankruptcy. Whilst s 30(1) may well provide an alternative pathway to the relief Mr Duckworth seeks, as he has brought his application under s 90-15 of the IPS, and as many of the previous cases that address trustee's objections or refusals to withdraw objections were made exercising power under the repealed s 178, I prefer to approach this matter having regard to s 90-15 of the IPS. I have no doubt that in an appropriate case it is open to me to order the withdrawal of an objection, exercising the power under s 90-15.

54    The question then is whether it is appropriate to make such an order in this case.

55    Mr Duckworth submitted that there is no purpose in his continued bankruptcy; that the Trustee's actions are punitive, having regard to his age and health; and that there is no evidence that there is any utility in continuing the administration of the estate. He asserts that any grounds relied upon by the Trustee are vindictive and trivial.

56    There are matters that I am willing to assume in Mr Duckworth's favour, having regard to the evidence. Based on the correspondence that I have set out above, it appears that despite initial non-compliance with the Trustee's requests, Mr Duckworth may have provided a number of documents to the Trustee after the notice of objection was issued. In particular, I assume that Mr Duckworth ultimately completed and provided the ICQs for all relevant CAPs, as requested by the Trustee. I make this assumption based on the emails of 3 October 2022 from Ms Pereira to Mr Duckworth in which she requests and reiterates a request for bank statements for the period September 2020 to 3 October 2022, but does not refer to any outstanding ICQs.

57    Mr Duckworth asserts that he has subsequently provided the Trustee with all bank statements, and refers to his email to the Trustee of 5 October 2022 which purportedly attached the bank statements. The bank statements themselves are not in evidence. I therefore cannot be certain that Mr Duckworth provided all bank statements as requested. However, the only evidence that would suggest otherwise is the Trustee's email of 6 October 2022 to the effect that the information Mr Duckworth had provided was 'not satisfactory' (I place no weight on Ms Pereira's reference to 'threats'). But similarly, the Trustee has not participated in the proceeding, has not provided any evidence that might explain what specific information has not been provided by Mr Duckworth, and has not explained the potential relevance of any such information to the continued administration of the estate. Weighing all of those matters in the mix, I am not persuaded that Mr Duckworth has failed to address the matters in the notice of objection or, as at 3 October 2022, has materially failed to attend to the matters subsequently raised by the Trustee.

58    One can speculate that the Trustee has not been satisfied that Mr Duckworth has been frank in his disclosure of income over the period of his bankruptcy - but speculation is not evidence.

59    Even if there has not been complete compliance with the matters raised by the notice of objection, I am persuaded on balance by the evidence placed before me by Mr Duckworth that there has been substantial compliance with the matters it raised. To the extent there remain other (unparticularised) deficiencies in the information provided by Mr Duckworth to the Trustee, I am not satisfied that such deficiencies justify denying relief.

60    Having regard to all of the circumstances, I consider it just and appropriate to direct that the objection to discharge be withdrawn forthwith. It would appear that the Trustee was concerned with the position of only one external creditor by the time of the various 2022 communications before the Court. There would appear to be no prospect that the creditor will be paid should the bankruptcy continue, or that there will be any other benefit to the estate. Having regard to Mr Duckworth's age, I accept that he is in effect retired. I am not aware of any other utility or purpose in the bankruptcy continuing. The Trustee has no funds and it does not appear that he presently intends to undertake any other work relating to the estate.

61    In coming to this view I acknowledge the fundamental importance to creditors of the bankruptcy regime and a trustee's power of investigation: it is important that the whole of the bankrupt's estate be identified so as to be made available to the bankrupt's creditors, and the Bankruptcy Act contemplates that the bankrupt who derives income during the bankruptcy pay a contribution towards the bankrupt's estate.

62    In my view, the Trustee properly sought information relevant to the bankrupt estate and the interests of creditors at various times over the years. I find nothing in the evidence before me to support Mr Duckworth's submission that the Trustee has acted maliciously or is seeking only to punish him. Indeed, Mr Duckworth appears to have been unnecessarily stubborn at times in resisting or delaying the provision of requested information. But there comes a point where, having regard to the material that has already been provided and the level of compliance to which I have referred at [56]-[59] above, and having regard to the six years of bankruptcy during which such requests for information have been made, it should be accepted that the Trustee has exhausted all reasonable prospects of recovering any assets or income for the benefit of the estate. It is therefore futile that the bankruptcy continue and, contrary to the position taken by the Trustee, I consider that it is appropriate that the notice of objection now be withdrawn. I consider that in all of the circumstances, and based on the evidence before me, the Trustee should have agreed to discharge the notice of objection as at 6 October 2022. He failed to properly take into account the substantial compliance with the requests for financial information and the futility of the continuation of the bankruptcy.

63    However, I do not consider that such failure evidences any misconduct on the part of the Trustee.

64    I also note Mr Duckworth's generalised complaints in his filed documents about the Trustee's conduct and the costs associated with the administration of the estate by the Trustee. There was no admissible evidence to support the allegations made, and I make no orders with respect to those matters.

Order

65    For these reasons there will be an order that the Trustee withdraw the notice of objection forthwith.

66    Mr Duckworth's application is otherwise dismissed. In light of the manner in which the principal application has proceeded and been determined, it was not necessary to determine the urgent application for relief, and it is appropriate that it also be dismissed. There was no evidence that justified a grant of urgent relief.

Associate:

Dated:    14 July 2023