Clout (Trustee), in the matter of Warren (Bankrupt) v Warren [2023] FCA 755

Federal Court of Australia

Clout (Trustee), in the matter of Warren (Bankrupt) v Warren [2023] FCA 755 File numbers: QUD 274 of 2022

Judgment of: LOGAN J

Date of judgment: 20 April 2023

Catchwords: BANKRUPTCY –where trustee makes an application under s 146 of the Bankruptcy Act 1966 (Cth) (the Act) for orders permitting the declaration of dividends to creditors – where the bankrupt did not file a statement of affairs as required – where the bankrupt seeks interim orders inter alia the court set aside a sequestration order on basis it was obtained by fraud – where the Queensland Law Society as petitioning creditor is an interested party – where the two applications heard together – where no evidence of fraud tendered s 140 Evidence Act 1995 (Cth) applied – where the bankrupt sought adjournment to gather evidence – where adjournment denied – where the bankrupt submits a stay is operative and therefore the debt was not a liquidated sum payable – where there exists a stay of enforcement a debt remains payable Pollack v Commissioner of Taxation (1991) 32 FCR 40 applied – where the court finds the creditors' petition was duly authorised – where the bankrupt seeks orders under s 153B the Act to annual bankruptcy – where in exercising the Court's discretion to annual bankruptcy, the bankrupt's failure to lodge a statement of affairs is relevant consideration McLean (Trustee), in the matter of Erbas (Bankrupt) v Erbas [2019] FCA 1763 applied – where bankrupt alleges misconduct of trustee not founded in evidence – bankrupt's application dismissed – application by trustee under s 146 of the Act allowed

Legislation: Bankruptcy Act 1966 (Cth) ss 37, 109, 140, 146, 153B Evidence Act 1995 (Cth) s 140 Federal Court Rules 2011 (Cth) r 39 Uniform Civil Procedure Rules 1999 (Qld)