Rees (Trustee), in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862

FEDERAL COURT OF AUSTRALIA

Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt)

[1999] FCA 1862 RE: JOHN RICHARD STUBBERFIELD; JOHN ROBERT REES, REGISTERED TRUSTEE; JOHN RICHARD STUBBERFIELD (Respondent) SPENDER J 17 DECEMBER 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

In the Matter of the Estate of JOHN RICHARD STUBBERFIELD

Q 7460 OF 1999

RE: JOHN RICHARD STUBBERFIELD

EX PARTE: JOHN ROBERT REES, REGISTERED TRUSTEE

RESPONDENT: JOHN RICHARD STUBBERFIELD

JUDGE: SPENDER J

DATE OF ORDER: 17 DECEMBER 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: (1) Pursuant to s 146 of the Bankruptcy Act 1966 as amended, the distribution of dividends amongst the creditors of the bankrupt estate of John Richard Stubberfield, who have proved their debts, proceed in accordance with Division 5 of Part VI of the Bankruptcy Act, as if the bankrupt John Richard Stubberfield had filed a statement of his affairs, and those creditors had been stated to be creditors in it; and that the Trustee, John Robert Rees, so act. (2) The costs of the applicant, of and incidental to this application, be paid out of the estate of the bankrupt. (3) The Trustee have liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

In the Matter of the Estate of JOHN RICHARD STUBBERFIELD

Q 7460 OF 1999

RE: JOHN RICHARD STUBBERFIELD

EX PARTE: JOHN ROBERT REES, REGISTERED TRUSTEE

RESPONDENT: JOHN RICHARD STUBBERFIELD

JUDGE: SPENDER J

DATE: 17 DECEMBER 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 I am presently dealing with an application by Mr John Rees as trustee of the bankrupt estate of Mr John Richard Stubberfield. Mr Stubberfield was made bankrupt pursuant to a sequestration order, made by District Registrar Ramsey on 28 July 1999. The trustee makes application pursuant to s 146 of the Bankruptcy Act 1966 for an order permitting the trustee, upon such terms as the Court may order: "...[to] proceed to make distribution of dividends amongst the creditors who have proved their debts in accordance with Division 5 of Part VI of the said [Bankruptcy] Act as if the bankrupt had filed a statement of his affairs and those creditors have been stated to be creditors in it." 2 Section 146 of the Bankruptcy Act provides: "Where a bankrupt has failed to file a statement of his or her affairs as required by this 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 shall proceed in accordance with this Division as if the bankrupt had filed a statement of his or her affairs and those creditors had been stated to be creditors in it. 3 This application then is premised on the fact that Mr Stubberfield has failed to file a statement of affairs. Mr Rees deposes to the fact that Mr Stubberfield has sufficient moneys in the estate to pay all known creditors in full. 4 Mr Rees wrote a letter to Mr Stubberfield on 30 July 1999, requesting completion of a statement of affairs, to be returned within 14 days. No response was received to this letter. That letter was sent to the same address to which I directed that notice of these proceedings be given, and in respect of that notice there was apparently no difficulty in Mr Stubberfield receiving that notice and responding to it. The reason I directed that Mr Stubberfield be notified of this application was that I thought the bankrupt was entitled to have the opportunity of being heard on the issue of whether there had been a failure to file a statement of affairs pursuant to the obligation in s 54 of the Act. 5 Subsequent to the lack of response to the letter requesting completion of a statement of affairs, Mr Rees made numerous attempts to contact Mr Stubberfield by telephone and letter on dates including 5 August, 6 August, 16 August, 20 August and 26 August. Mr Rees received no response to any of this correspondence. The trustee then wrote to the Official Receiver on 25 August, setting out the situation and requesting the Official Receiver's assistance to ensure that Mr Stubberfield produced a statement of affairs. In addition, Mr Rees sought the issue by the Official Receiver of a s 77C notice to Mr Stubberfield, demanding the statement of affairs. 6 On 7 September 1999 Mr Stubberfield came to the office of the trustee and there was an acrimonious meeting. The details of this meeting are set out in the affidavit of Mr Rees, filed 28 October 1999, at pages 4 and 5.