JUDGMENT No. 227d 2% CATCHWORDS BANKRUPTCY - failure to file a statement of aftairs - committal of bankrupt to prison for contempt Bankruptcy Act 1966 - s 54(3), 176(1) RECEIVED 23 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY e: Tu Nguyen: e Defiance No. QB289 of 1994 Kiefel J.. Brisbane, 16 December 1994 IN THE FEDERAL COURT OF AUSTRALIA No.QB289 af 1994 GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND RE: TU NGUYEN EX PARTE: DEFIANCE MILLING CO PTY LTD licant JUDGE MAKING ORDER: Kiefel J DATE OF ORDER: 16 December 1994 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. TU NGUYEN be committed to pnson until further order for contempt of court for failing to file a statement of affairs as required by s.54(3) of the Bankruptcy Act 1966. 2u; _ A copy of this order be served personally upon TU NGUYEN as soon as practicable and that an affidavit of such service be filed forthwith. '3. The warrant for committal lie in the office of the Registrar for a period of 30 days, from the date of personal service of this order upon the bankrupt and be not executed if the bankrupt files a statement of affairs as required by s.54(3) within that time. THE COURT GRANTS: 4. The parties liberty to apply. THE COURT ORDERS THAT: 3. The bankrupt pay the trustee's costs of and incidental to the application to be taxed. NOTE: Settlement and entry of orders 1s dealt with m Rule 124 of the Bankruptcy Rules. # 4, AUSTRALIA, .b- "IH Ca, Con. foment COR With the Complements of Guster SM, Kiel 1/12) Py , JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA 119 NORTH QUAY BRISBANE 4000 AUSTRALIA IN THE FEDERAL COURT OF AUSTRALIA No. OB289 of 1994 GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND RE: TU NGUYEN EX PARTE: DEFIANCE MILLING CO PTY LTD CORAM: Kiefel J DATE: 16 December 1994 PLACE: Brisbane NS FOR JUDG On 10 February 1994, a sequestration order was made against Tu Nguyen, the respondent to an application for committal for contempt brought by the trustee in bankruptcy. On 15 February 1994, the trustee wrote to the bankrupt advising of the order for sequestration and generally advising the bankrupt as to his obligations. In particular, that letter drew his attention to the requirement to file a statement of affairs, to what was required to be contained within it and to the time within which that must be undertaken. On 11 March 1994, the trustee wrote requiring urgent attention to the requirements of the Act. The trustee subsequently caused a process server to personally serve upon the bankrupt, as now appears by supplementary affidavits filed by the process server, a copy of the sequestration order together with a notification of his responsibilities as a bankrupt, a warning notice, a statement of affairs, a personal questionnaire, a business questionnaire and an income questionnaire. No response was received by the trustee, and the present application was filed on 15 September 1994 and served personally on the bankrupt on 5 October 1994, The matter came before the court on 1 November 1994, at which time there was no appearance for the bankrupt, but was adjourned to permit further affidavits as to service previously effected to be filed. Whilst there 1s no affidavit of personal service as to the adjourned heamng today, the trustee's solicitors have forwarded a letter dated 8 November 1994 and which I take to have been forwarded on about that date addressed to the bankrupt at the address where he has previously been served. Those solicitors undertake to file an affidavit as to service by post. The material makes clear that the bankrupt has refused to do any of the matters required by the Act despite those requirements having been drawn to his attention on numerous occasions and despite numerous demands that he do so. He has had notification of the prior application for his committal and has not responded to it. I am satisfied that his obligations have been drawn to his attention and that he would, by reason of those documents, have been well aware of what he is required to do. I am further satisfied that he has simply refused to comply with his statutory obligations and by his last non-appearance on the first return date shown a disinclination to take part in these proceedings. I will be prepared to direct, then, under s.176(1) that service of a notice informing the bankrupt of this adjourned date for hearing be deemed to have been effected by post. With respect to that matter, however, it seems to me that the further opportunity provided by section 176(3) 1s then appropnate, that 1s to say that whilst I propose to order the commuttal of the bankrupt to prison for contempt of court I will also direct that the warrant lie in the office of the Registrar for a period and that it not be executed if the bankrupt complies with the conditions specified in tt. I propose to allow a penod of 30 days for the purpose of that direction, to be taken from the filing of an affidavit of personal service of notification of this order and notification that a warrant lies in the office of the Registrar. I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Date: 16 December 1994 MM fatlarch Associate Counsel for the applicant: Mr F. Redmond Solicitors for the applicant: Feez Ruthning Respondent: No appearance Date of Hearing: 15 December 1994 Place of Hearing: Brisbane Date of Judgment: 16 December 1994