Cooper (Trustee) v Official Receiver [2025] FCA 1155

Section 139ZQ of the Bankruptcy Act 1966 (Cth) provides for the Official Receiver to issue a written notice requiring a person who has received money or property as a result of a transaction that is void against the trustee of a bankrupt under certain provisions of the Bankruptcy Act to pay the money or value of the property received. In the case of a bankruptcy conducted by a registered trustee, an application may be made to the Official Receiver to issue the written notice. The legislation does not otherwise provide for the procedure to be followed by the Official Receiver in considering whether to issue a written notice.
Mr Nicholas Cooper is the trustee of the bankrupt estate of Mr Troy Delaporte. Mr Cooper sought the issue of a written notice under s 139ZQ to Mr Trevor Delaporte, the father of the bankrupt. The notice was sought in respect of an alleged transfer of a motor vehicle by the bankrupt to his father. The application for the issue of the notice was refused by an Official Receiver. Mr Cooper then commenced proceedings in this Court seeking judicial review of the refusal.
The Official Receiver now concedes that the decision on 18 December 2024 was affected by error.
The parties seek orders by consent quashing the decision of the Official Receiver and for the application by Mr Cooper to be determined according to law. They also propose an order by consent that the Official Receiver pay Mr Cooper's costs of the proceedings.
As I explained in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3], even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. Likewise, where orders of that kind are sought by consent on appeal: see Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17.
The precise source of the power to review the decision of the Official Receiver that can be exercised is not identified. The consolidated proceedings for review seek to invoke a number of alternative sources of alleged jurisdiction. They include, the general statutory jurisdiction conferred upon the Court by s 15(5) of the Bankruptcy Act to review an act done by an Official Receiver, as well as s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, the relief that it is conceded may be granted is the making of an order in the nature of certiorari. Relief of that kind is available: s 39B of the Judiciary Act 1903 (Cth). It would require the demonstration of jurisdictional error or error of law on the face of the record. For the following reasons, I am satisfied that there is a proper basis for a concession as to jurisdictional error. Accordingly, there is no need to address the availability of other possible sources of jurisdiction to review the decision by the Official Receiver not to issue a written notice.
The application by Mr Cooper to the Official Receiver relied upon s 120 of the Bankruptcy Act as the basis for claiming that there had been a transfer of the motor vehicle that was void. In those circumstances, the decision-making task to be undertaken by the Official Receiver was to consider whether the facts and circumstances demonstrated to the satisfaction of the Official Receiver that the transfer was void under s 120.
The Official Receiver reasoned that there were insufficient facts to support the conclusion that there had been a transfer of the motor vehicle to Mr Trevor Delaporte. The Official Receiver was also not satisfied that, in the event there was a transfer, it was for less than market value because the facts and circumstances, in the view of the Official Receiver, did not sufficiently evidence the market value of the motor vehicle as at the date of the alleged transfer.
The Official Receiver accepts that there was legal error in the reasoning as to whether there had been a transfer of ownership of the motor vehicle in that the mistaken view was formed that the lodgement with the Department of Transport of a notification of change of ownership vehicle licence transfer form was a precondition to the transfer of legal ownership. The Official Receiver accepts that in doing so there was regard to an irrelevant consideration. However, the parties have not identified the basis for any requirement to the effect that a valid exercise of the power required regard to a consideration of that kind. It may be that there was some aspect of the nature of the decision to be made that required regard to whether there was a transfer, but that is a matter to which the Official Receiver did have regard.
Nevertheless, I am satisfied that the agreed error in relation to what is required as a matter of law to effect the transfer of the motor vehicle was an error of law. Unless excluded by plain words of necessary intendment, a consideration of the exercise of a decision-making power must proceed by reference to correct legal principles, correctly applied: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [78]; see also Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 at [69]‑[76] (Gageler J); and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29] (Keifel CJ, Gageler and Keane JJ). Therefore, I am satisfied that the agreed error was jurisdictional.
Likewise, where the exercise of a statutory power is capable of having an adverse effect upon legally recognised rights or interests, the power is impliedly conditioned on the observance of procedural fairness. It requires procedural fairness where the relevant power directly affects rights or interests of a particular individual: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22 at [33]- [34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). In my view, the statutory power to be exercised by the Official Receiver under s 139ZQ is such a power.
In cases where the error is said to be a failure to afford procedural fairness, the relevant question concerns the process that has been followed by the decision-maker, not the ultimate decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25].
The nature and extent of the obligation to afford procedural fairness before exercising a statutory decision-making power depends upon the statutory framework within which the decision is made and whether the procedures that have been adopted have resulted in practical injustice: SZBEL at [26]; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ). Generally, there must be an opportunity to make meaningful submissions: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). Further, the error in failing to afford procedural fairness must be material in the sense that it deprived the applicant of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80.
Failure to afford an opportunity to present evidence and contentions to answer what was considered by the decision-maker to be a deficiency in the available material may amount to procedural unfairness.
In the present case, the legislation provided for an application to be made to the Official Receiver. Regard to the statutory framework supports the conclusion that the Official Receiver was required to afford procedural fairness to a registered trustee who sought the issue of a written notice under s 139ZQ. Further, I am prepared to accept that, in particular circumstances, a failure to afford a registered trustee an opportunity to redress a deficiency in the material presented in support of an application may form part of the content of what is required to afford procedural fairness.
The Official Receiver accepts that Mr Cooper ought to have been afforded an opportunity to make submissions or furnish evidence relating to whether there had been a transfer of the motor vehicle and the market value of the motor vehicle at the time of transfer of the motor vehicle.
In the present case, the error of law as to what was required to effect a transfer, together with the failure to afford procedural fairness as to the question of market value, established the claim of jurisdictional error.
No issue of discretion as to the grant of the relief arises.
For those reasons, I was persuaded that it was appropriate to make the orders sought by consent.

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