Federal Court of Australia

Dixon (Trustee) v Templer, in the matter of the bankrupt estate of Templer [2026] FCA 1272

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be permitted to make a distribution of dividends amongst the creditors who have proved their debts in the bankrupt estate of the respondent notwithstanding that the respondent has failed to file a statement of affairs.

2.    The costs of and incidental to this application up to the date of these orders be costs in the bankruptcy of the respondent.

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

STEWART J:

1    The applicant, Mr Dixon, is the trustee of the respondent’s bankrupt estate. Mr Dixon seeks an order that he be permitted to make a distribution of dividends to the creditors of the estate who have proved their debts notwithstanding that the respondent has failed to file a statement of affairs as he is obliged to do by s 54 of the Bankruptcy Act 1966 (Cth). Mr Dixon also seeks an order that the costs of and incidental to the application be costs in the bankruptcy of the respondent.

2    The respondent is Ian Peter Templer, also known as Ian Templer.

3    Section 146 of the Act provides that where a bankrupt has failed to file a statement of their affairs as required by the Act, the Court may, on the application of the trustee, upon such terms as it thinks fit, order that distribution of dividends amongst the creditors who have proved their debts proceed as if the bankrupt had filed a statement of their affairs and those creditors had been stated to be creditors in it.

4    There are no express statutory requirements or limitations on the exercise of the Court’s power to make an order under that section. The exercise of the Court’s discretion thus “depends upon what may be gleaned from the section and the statute as a whole”: Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968 at [3] per Gyles J.

5    It is necessary that the Court “be satisfied that it is appropriate to make an order”, which may include that the Court be satisfied “that creditors have been notified of the application and have had an opportunity to be heard (although ordinarily the application would be made in the interests of creditors)”: Re Sturt; Ex parte Official Trustee in Bankruptcy [2001] FCA 1649; 117 FCR 1 at [19] per Sackville J. There is, however, no requirement under the Act that any creditors, or the bankrupt, be served with the application: Roufeil (Trustee), in the matter of Jarvie (Bankrupt) [2015] FCA 232 at [12] per Gleeson J. Although it was said in Re Sturt (at [19]) that the Court might require evidence that the trustee has taken appropriate steps to ascertain whether there are creditors other than those who have filed a proof of debt, it is incumbent on creditors to take some responsibility to safeguard their own interests upon the occurrence of a sequestration. That would include making themselves known to the trustee. In acting in the interests of creditors, it is possibly more important that the trustee identify assets than it is for the trustee to identify creditors: Dixon (Trustee) v Grant, in the matter of the bankrupt estate of Grant [2025] FCA 1440 at [16]-[17].

6    I consider that it is relevant to the exercise of the discretion under s 146 for the Court to consider what effort the trustee has made to get the bankrupt to file a statement of affairs, whether it is likely that further effort would cause the bankrupt to file a statement of affairs, what effort the trustee has made to identify creditors and assets of the estate in the absence of a statement of affairs and whether it is in the interest of creditors and the proper administration of the estate to make the order.

7    Turning now to the facts of the present case, Mr Dixon was appointed as trustee on 29 January 2025. The date of the act of bankruptcy is 3 September 2024.

8    Pursuant to his investigations as trustee, Mr Dixon ascertained that as at the date of bankruptcy the respondent was the joint registered owner of an unencumbered property in Price, SA. The respondent appears to have lived in South Australia – he and his domestic partner owned the property just mentioned, the judgment on which his estate was sequestrated was a judgment of the Magistrates Court of South Australia, the sequestration order was made in the South Australian registry of this Court, and he had recently jointly owned another property in South Australia.

9    Mr Dixon undertook credit searches with a credit reporting agency for the purpose of identifying creditors, but he was not able to identify any additional creditors other than the original petitioning creditor for the respondent’s sequestration, namely Bupa Aged Care Australia Pty Ltd. Mr Dixon also wrote to several major banking institutions, the Australian Taxation Office (ATO) and the State Revenue Office of South Australia inviting any claims against the estate. Only the ATO confirmed that it has a claim. Thus, the only creditors that Mr Dixon has been able to identify are Bupa and the ATO.

10    The ATO lodged a proof of debt in the amount of $2,619.47. Bupa lodged a proof of debt which at the end of May this year was said to be in the sum of $128,572.54.

11    Insofar as the realisation of assets is concerned, Mr Dixon received the sum of $234,589.27 from the respondent’s joint bank account held with Bendigo Bank in March 2025.

12    Given that the sum realised is more than the sum of the proved debts, it is unnecessary for Mr Dixon to take steps to realise the property in Price – he has formed the view that it is likely that there are sufficient funds available to pay all the creditors in full and his costs and remuneration as trustee and to annul the bankruptcy.

13    All of the above was achieved by Mr Dixon without the assistance of any statement of affairs having been filed by the respondent. I turn to that matter now.

14    Section 54(1) of the Act provides that a person against whose estate a sequestration order is made, shall within 14 days from the day they are notified of the sequestration make out and file a statement of affairs with the Official Trustee and furnish a copy of the statement of affairs to the trustee.

15    Shortly after being appointed as trustee, Mr Dixon wrote to the respondent by registered post advising him of the appointment of Mr Dixon as trustee and the respondent’s obligations as a bankrupt including the requirement to provide a completed statement of affairs. Mr Dixon, or a colleague and staff on his behalf, made numerous attempts to contract the respondent by registered mail, email and mobile phone from February to July 2025.

16    The only communications that were received from the respondent were an email in March 2025 in which the respondent requested bank details so that he could make a payment to the trustee and another in June 2025 in which he stated that he had sent his statement of affairs by post. Those emails served to confirm that the respondent had received the emails that Mr Dixon or those assisting him had sent. There was also one occasion in May 2025 when the respondent was reached on his mobile phone and in which he was informed of his obligation to provide a statement of affairs.

17    Despite all those efforts, and the respondent having said that he had posted the statement of affairs, Mr Dixon never received a statement of affairs from the respondent. Only this morning at 8.05 am the Court received an email from the respondent copied to the solicitors for Mr Dixon in which he said, as written: “How many statement of affairs do I have to send. I have done another one and sent it to Dixon on the 26/08/2026.” Mr Hay who appeared for Mr Dixon this morning said that his instructions are that no statement of affairs has been received from the respondent, even this morning. I accept that to be the position, noting that none was attached to the respondent’s email of this morning and he had previously said that he had posted a statement of affairs when he apparently had not. He has also had notice of Mr Dixon’s application since 8 July 2026, giving him ample opportunity to file a statement of affairs.

18    The Australian Financial Security Authority was also unable to serve a s 77CA notice on the respondent requiring him to give the Official Receiver a statement of affairs within 14 days after receiving the notice. I am satisfied that the respondent has not cooperated with the trustee and he has failed to fulfil his obligation to file a statement of affairs. Mr Dixon has repeatedly sought the respondent’s cooperation, but to no avail. I am satisfied that it is unlikely that further attempts by Mr Dixon to get the respondent to file a statement of affairs will result in success.

19    I am also satisfied that Mr Dixon as trustee has done what might reasonably be expected of him to identify creditors and assets. It is unlikely that further enquiries by him will identify further creditors or further assets. In any event, as mentioned, the cash received is sufficient to pay the known creditors and the costs of the bankruptcy.

20    Further, not making an order allowing Mr Dixon to pay the creditors notwithstanding that no statement of affairs has been filed would serve to stifle the finalisation of the bankruptcy. That would be to the disadvantage of creditors; it would not be in their interests.

21    For those reasons, I am satisfied that the orders sought by Mr Dixon should be made.

22    For completeness, I am satisfied that the respondent has been given notice of the application, although, as explained, there is no requirement that he be given notice. The order listing the matter for hearing for today was provided to the respondent by email. It is that email to which he responded this morning, thereby indicating that he had received notice of the hearing today. He failed to appear.

Associate:

Dated:    31 August 2026