FEDERAL COURT OF AUSTRALIA Lelleton v White [2009] FCA 1165 BANKRUPTCY - undischarged bankrupt – where a Statement of Affairs is not on record - filing a Statement of Affairs pursuant to a sequestration order - meaning of 'file' in s 54(1) of the Bankrupcty Act 1966 (Cth) - discharge of bankruptcy Bankruptcy Act 1966 (Cth) ss 54(1), 149(4) Trihakis v Official Receiver (Vic) [1999] FCA 1426, applied Sofia and Anor v Pattison and Anor [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997), cited JOHN LEO LELLETON v CLYDE PETER WHITE VID 651 of 2009 TRACEY J 12 OCTOBER 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 651 of 2009 GENERAL DIVISION BETWEEN: JOHN LEO LELLETON Applicant AND: CLYDE PETER WHITE Respondent JUDGE: TRACEY J DATE OF ORDER: 12 OCTOBER 2009 WHERE MADE: MELBOURNE THE COURT DECLARES THAT: 1. The Applicant has complied with s 54(1)(a) of the Bankruptcy Act 1966 (Cth) by filing his Statement of Affairs with the Registrar in Bankruptcy for the District of Victoria on 21 April 1995. 2. The Applicant was discharged from bankruptcy on 21 April 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 651 of 2009 GENERAL DIVISION BETWEEN: JOHN LEO LELLETON Applicant AND: CLYDE PETER WHITE Respondent JUDGE: TRACEY J DATE: 12 OCTOBER 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mr John Lelleton is in an unfortunate predicament. He became bankrupt in 1995 and had assumed that, pursuant to the operation of the Bankruptcy Act 1966 (Cth) ("the Act"), he had been discharged in 1998. To his surprise, when he sought to travel overseas earlier this year he was advised that he could not do so because records maintained by the Insolvency and Trustee Service Australia ("ITSA") disclosed that he remained an undischarged bankrupt. 2 He caused inquiries to be made. An examination of Court files and other documents yielded the following information which Mr Lelleton has deposed, on affidavit, to be true and correct. 3 He was made bankrupt by order of the Court on 6 April 1995. Mr Clyde White was appointed his Trustee. Prior to the hearing on 6 April 1995, Mr Lelleton had filed and served various documents relating to his financial affairs. At this time Mr Lelleton was residing with a friend in Sydney although he retained an address in South Yarra. 4 By letter dated 7 April 1995, Mr White wrote to Mr Lelleton formally advising him that he had been made bankrupt. The letter contained the following passage: "I enclose a blank copy of the Statement of Affairs for your completion and lodgement with the Registrar in Bankruptcy whose address is 450 Little Bourke Street, Melbourne. Please provide me with a copy." It was received by Mr Lelleton through his address in South Yarra. 5 Mr Lelleton deposes that he completed the Statement of Affairs on 19 April 1995 and, on or about that day, posted the document to the Registrar in Bankruptcy at 450 Little Bourke Street, Melbourne. The document was posted by pre-paid ordinary mail from a post box in Double Bay in Sydney. Despite being asked to do so, Mr Lelleton did not post a copy to Mr White. Mr Lelleton retained a copy of the Statement of Affairs which he posted to the Registrar. That Statement was produced to the Court this morning. The first two pages appear to be missing but the rest of the lengthy document appears to be intact. I note that it contains an instruction, at the end, that the Statement should be filed with the Registrar in Bankruptcy. There is no intimation that a copy should be sent to the Trustee. This may explain Mr Lelleton's failure to provide Mr White with a copy of the Statement of Affairs. 6 Unbeknown to Mr Lelleton, on 16 August 1995, Mr White wrote to the Registrar advising that: "To date, I have been unable to contact the above named bankrupt in order to notify him of his bankruptcy and to request that he lodge his Statement of Affairs. I have sent certified letters to the last known addresses, being 33 Manning Street, Double Bay, New South Wales and 33 St Martins Lane, South Yarra, Victoria. However, the letters were returned to my office unclaimed. I have also forwarded the notification of bankruptcy letter to 66 Abbotsford Street, Abbotsford, which is the address of the bankrupt's parents. The letter has not been returned to my office…" It seems strange that the letter addressed to Mr Lelleton at 33 St Martins Lane, South Yarra was returned unclaimed, given that Mr Lelleton had received it and responded to it. It may be that it was the letter addressed to 66 Abbotsford Street, Abbotsford which was returned. 7 Mr White subsequently filed an affidavit in the earlier proceeding, VB 737/95, deposing that he had not been able to contact Mr Lelleton and that he had no details of Mr Lelleton's estate. 8 There is no record of the Statement of Affairs being received by the Registrar in Bankruptcy. 9 In these circumstances Mr Lelleton applies to the Court for declarations that his Statement of Affairs be deemed to have been filed on 19 April 1995 and that he was discharged from bankruptcy on 19 April 1998. 10 Mr White has submitted to the jurisdiction of the Court and advised that he neither objects nor consents to the orders sought by Mr Lelleton being made. 11 At relevant times s 54(1) of the Act provided that: "54(1) Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he is notified of the bankruptcy: (a) make out and file in the office of the Registrar for the District in which the sequestration order was made a statement of his affairs; and (b) furnish a copy of the statement to the trustee." 12 The first issue which thus arises for determination is whether or not Mr Lelleton complied with the obligation imposed on him by s 54(1)(a) to "file" the statement of his affairs. 13 In Sofia and Anor v Pattison and Anor, [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997), his Honour said: "Whether the word "file" in s 54(1) is intended to be a reference to the act of the bankrupt or the act of the Registrar is unclear. But, having regard to the context in which the word is used it should be regarded as a reference to the act of the bankrupt. In the first place, the obligation that is imposed by s 54(1) is an obligation that is imposed on the bankrupt. In the second place the obligation is to file a document at a particular place namely at a Registry. This suggests that the statement will be filed when it is left with an officer at the Registry rather than when it has been placed on a file that is maintained at the Registry. Thus the section will be complied with whether or not the statement is subsequently placed on a file by the officer who received it." This decision provides some assistance to Mr Lelleton. It is authority for the proposition that it cannot be concluded that a statement has not been filed for the purposes of s 54(1) simply because the document does not appear on a file maintained by the Registrar. Mr Lelleton did not, however, hand deliver his Statement to the Registry. He posted it and is unable to explain why it does not appear on file. There are a number of possibilities, the most obvious ones being that it went astray in the mail or, having been delivered to the Registry it was, for some unknown reason, not placed on file. 14 Mr Lelleton nonetheless contends that he satisfied the requirements of s 54(1)(a) of the Act by posting the Statement of Affairs to the Registrar in Bankruptcy. He relied on the decision of Kenny J in Trihakis v Official Receiver (Vic) [1999] FCA 1426. Her Honour there held that a Statement of Affairs could be filed by posting a completed original statement to the Registrar. In that case a declaration of the kind presently sought was granted in circumstances in which her Honour was satisfied that a Statement of Affairs had been posted but, for some undisclosed reason, could not be found on the Registrar's file. 15 I am satisfied, on the balance of probabilities, that Mr Lelleton posted his Statement of Affairs to the Registrar as he claims, on or about 19 April 1995. I am so satisfied for a number of reasons. Mr Lelleton has sworn that he posted the document. He retained a copy of it. The copied form appears in a format that was in use in 1995 but is not presently in use. It is dated April 1995. It is inherently unlikely that Mr Lelleton would have attempted to reconstruct such a form so long after the event. It is also inherently unlikely that, having gone to the trouble of completing a long form in a timely way, he would not have attempted to comply with the obligation which Mr White had brought to his attention by posting it from Sydney to the Registrar. 16 At all relevant times s 149(4) of the Act provided: "(4) If the bankrupt becomes a bankrupt after the commencement of s 27 of the Bankruptcy Amendment Act 1991, the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs." It is to be noted that the three year period runs from the date on which the Statement of Affairs was filed. It does not run from the date on which the Trustee is provided with a copy of the Statement. Mr Lelleton's failure to provide a copy of the Statement to Mr White in 1995 can, therefore, have no bearing on the determination of the date of his discharge from bankruptcy. 17 The relevant date is the date of filing. In Trihakis,Kenny J fixed the date of filing as a day that was three days after the Statement of Affairs was signed in order to allow for any delay in posting and delivery. Given that the Statement in the present proceeding was despatched from Sydney on 19 April 1995, I consider that an allowance of two business days should be made such that the date of filing should be fixed, not as 19 April 1995 (the date of signing) but 21 April 1995. Discharge, by operation of s 149(4) of the Act would, therefore, have occurred on 21 April 1998. 18 I note that Mr White's letter to Mr Lelleton is dated 7 April 1995. If an equivalent allowance of two days is made for it to have been received by Mr Lelleton, his Statement of Affairs was filed, as required by s 54(1)(a) of the Act, within 14 days from the date on which he was notified of his bankruptcy. 19 Declarations, consistent with these findings, will be made. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 October 2009 Counsel for the Applicant: Mr L Watts Solicitor for the Applicant: Mr R Silverstein Date of Hearing: 12 October 2009 Date of Judgment: 12 October 2009