FEDERAL COURT OF AUSTRALIA Balakrishnan v Sinnatharai [2001] FCA 1596 UTHIYA KUMAN BALAKRISHNAN v JAYABALAN SINNATHURAI N 7362 OF 2001 EMMETT J 26 SEPTEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7362 OF 2001 BETWEEN: UTHIYA KUMAN BALAKRISHNAN APPLICANT AND: JAYABALAN SINNATHURAI RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 26 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the trustee's costs of the proceeding including all earlier appearances. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7362 OF 2001 BETWEEN: UTHIYA KUMAN BALAKRISHNAN APPLICANT AND: JAYABALAN SINNATHURAI RESPONDENT JUDGE: EMMETT J DATE: 26 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I have before me an application under s 153B of the Bankruptcy Act 1966 for the annulment of the bankruptcy of the respondent. The applicant was married to the respondent on 4 December 1989 in Singapore. On 7 March 2001 the applicant filed an amended application for a property settlement pursuant to s 79 of the Family Law Act 1975. That application was filed in the Family Court of Australia. The amended application was served on the respondent's then solicitors on 7 March 2001. The conference pursuant to Order 24 of the Family Court Rules was conducted on 18 April 2001. The application for property settlement and other ancillary matters were listed for hearing before the Family Court for a period of five days commencing on 30 July 2001. On 29 June 2001 the applicant's affidavits in support of her applications were filed in the Family Court. 2 However, on 27 June 2001, the respondent filed a Debtors Petition pursuant to s 55 of the Bankruptcy Act 1966 ("the Act"). That Petition was accepted by the Official Receiver whereupon, by the operation of s 55(4A) of the Act, the respondent became a bankrupt. 3 In her application to this Court, the applicant sought, by way of interlocutory relief, an order pursuant to s 35A of the Act that the application be transferred to the Family Court of Australia. Section s 35A provides that, where a proceeding is pending in the Federal Court, the Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court. When this matter came before me for directions, counsel who then appeared for the applicant indicated that that application would not be pursued. A request was made that the matter be fixed for hearing and accordingly, I fixed the matter for hearing today. 4 When the matter was called on today, the application to transfer the proceeding to the Family Court was renewed. Where the efficiency and economy of judicial administration requires it, it would be appropriate to exercise the power contained in s 35A. Where there would be substantial overlap in an application in this Court with the issues in Family Court proceedings, for example, in relation to a bankrupt's cash resources and liquidity, it may be appropriate that the power contained in s 35A be exercised. However, I was not persuaded, having regard to the conduct of proceedings to date, that it was appropriate to exercise that power, since the matter had been fixed for hearing before me today. Accordingly, I refused the application to transfer and proceeded with the hearing of the application. 5 Section 153B provides as follows: "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." 6 While counsel for the applicant indicated that there may be some suspicion attaching to the timing of the presentation of the Debtors Petition, he did not allege that the filing of the Petition was an abuse of process under the Act. On the day after the presentation of the Petition, orders were made by the Local Court in Wollongong restraining the respondent from filing a Petition. There is no evidence, however, that the debtor respondent had prior notice of the intention to apply for those orders. In any event, as I have said, there is no contention that there was an abuse of process and, accordingly, no ground along those lines is established under s 153B. 7 In substance, the application was based on a contention that the Petition ought not to have been presented because the respondent had funds available to him that would have enabled him to meet his liabilities. That assertion appears to be based on evidence that the respondent was entitled to a fund of money in Singapore. While the applicant and respondent were living in Singapore, they purchased a residential property in the suburb of Woodland, Singapore, for $S 103,000. To assist in the purchase of that property, they were able to gain access to a superannuation entitlement. When the applicant and respondent migrated to Australia in July 1999 they sold the property and received a sum of $S 213,853. From the gross proceeds of sale, monies were refunded to the superannuation accounts including the sum of $S 28,845 to the respondent's superannuation account. 8 I have no evidence before me as to the present balance of that account other than evidence of a conversation between the applicant and the respondent, which I shall quote, as follows: Respondent: "We need to discuss what we are going to do. I want to meet you somewhere." Applicant: "We can do it over the phone." There was then some discussion with respect to settlement. During the conversation the applicant said: Applicant: "What about the money you went to get from Singapore?" Respondent: "I have given it back to my parents because I owe them money." Applicant: "How much did you pay your parents?" Respondent: "The whole lot of it. That's how much I owed my parents." The applicant asserts, and it is no more than an assertion, on the basis of the evidence before me, that the respondent had funds available to him from which he could have paid certain of the creditors disclosed in his statement of affairs filed with the Debtors Petition. While there were assertions that moneys were not owing in an affidavit filed on behalf of the applicant, that evidence was not in any form that could be admitted. Consequently, I rejected it. 9 On the basis of the material before me, I do not consider that any case has been made out that the petition ought not to have been presented. I should say, however, that I regard the evidence filed on behalf of the applicant as being a sorry recommendation for the lawyers involved in its preparation. It may be that there is some basis for suspicion. However, the applicant has not established any evidence before me that would justify any conclusion that the petition ought not to have been presented. Accordingly, I dismiss the application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 13 November 2001 Counsel for the Applicant: Mr N L McCaffery Solicitor for the Applicant: Maguire & McInerney Counsel for the Respondent: The respondent appeared in person Solicitor for the Official Trustee in Bankruptcy: Sally Nash & Co Date of Hearing: 26 September 2001 Date of Judgment: 26 September 2001