Deputy Commissioner of Taxation v Isaac, in the matter of Isaac [2025] FedCFamC2G 1834

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules. .

1. Before the Court is an application for review of a decision made by a Judicial Registrar Birchall (Judicial Registrar) on 17 September 2025, who exercised powers delegated pursuant to s 254 of the of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act), to allow the applicant in these proceedings (the DCT) to amend a creditor's petition, (Registrar's decision) (application for review).
2. The application for review, which was filed by the respondent (Mr Isaac) on 1 October 2025, has come on for hearing before me with some urgency. The final hearing of the creditor's petition is listed on 14 November 2025. Consequently, I heard the application for review on 3 November 2025. Having conducted a de novo review of the matter, I have decided to dismiss the application for review. My reasons for this conclusion are set out below.

1. On 21 December 2023, Okaya Australia Pty Limited (Okaya) commenced these proceedings by filing a creditor's petition relying upon acts of bankruptcy pursuant to s 40(1)(c)(i), (ii) and (iii) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) (Creditor's Petition). It stated (Court Book 1 (CB1) p3):

"That on and from 21 November 2023, with intent to defeat or delay his creditors, he [the respondent] departed and remained out of Australia, departed from his usual place of business and otherwise absented himself... and he continues to do so."

1. An affidavit verifying the Creditor's Petition was made by Mr Kenichi Kato, a director of Okaya (Mr Kato's verifying affidavit). Paragraph 22 of the Kato verifying affidavit stated (CB1 p6):

"On 21 November 2023 the respondent swore an affidavit in unrelated [Victorian] Supreme Court proceedings. The location the affidavit was noted as being sworn at, was Dubai, United Arab Emirates. Exhibited to this affidavit and marked with the letter "G" is a copy of the affidavit."

1. Annexure "G" to the Mr Kato's verifying affidavit contained an affidavit made by Mr Isaac in the Victorian Supreme Court proceedings, In the matter of Adcon Structural Steel Group Pty Ltd (Mr Isaac's VSC Affidavit and Victorian Proceeding) (CB1 p110). Relevantly, the jurat on Mr Isaac's VSC affidavit identifies that it was affirmed by Mr Isaac in Dubai on 21 November 2023 (CB1 p112).
2. Mr Vrindaban Das Sternbeck (Mr Isaac's solicitor in these proceedings) has sworn an affidavit on 4 September 2025 (CB1 p814). It provides background to the Victorian Proceeding. In his affidavit. Mr Sternbeck says that in the Victorian Proceeding, his firm acted for Adcon Structural Steel Group Pty Ltd, and Mr Isaac was the sole director of Adcon. He also says, relevantly, that Mr Isaac's VSC Affidavit was permitted to be filed and served in the Victorian Proceeding under procedural directions made on 8 November 2023, but the affidavit was not read in those proceedings. He also states that neither Mr Isaac nor Adcon gave consent for the affidavit be used in these proceedings. Mr Sternbeck's affidavit annexes a copy of the 8 November 2023 directions made in the Victorian Proceeding. Order 4 provided (emphasis added):

"Any affidavit on which the defendant [i.e. Adcon] desires to rely to oppose the application including as to solvency or to support any further adjournment be filed and served by 4:00pm on 21 November 2023"

1. On 6 May 2024, Mr Isaac swore an affidavit in which he outlined his overseas travel, including his departure on 9 October 2023 from Brisbane to Dubai in the United Arab Emirates (CB1 p122).
2. On 12 August 2024 the DCT filed a Notice of Appearance.
3. The final hearing of Okiya's Creditor's Petition had been listed before this Court on 29 October 2024. Prior to that hearing, an agreement had been reached for Okaya's Creditor's Petition to be dismissed. On 28 October 2024, Mr Isaac and Okaya filed a statement of agreed facts recording that Mr Isaac had, from October 2023, "not been personally present in Australia" (CB1 p190).
4. Orders were made on 29 October 2024 for the DCT to file an Interim Application for substitution under s 49 of the Bankruptcy Act (substitution application) by 15 November 2024, with the matter returnable on 3 December 2024 (CB1 p192). These Orders also noted that Mr Isaac and Okaya had agreed for Okaya's Creditor's Petition to be dismissed (CB1 p192).
5. On 3 December 2024, Orders were made by this Court to extend the life of the Creditor's Petition to 21 December 2025, for the DCT's substitution application to be stood over until further order, and for Metroll Pty Ltd (Metroll), another supporting creditor, to file and serve an interim application for substitution as petitioning creditor (CB2 p12, T12:10-17).
6. On 4 February 2025, Metroll filed and served an application for substitution as petitioning creditor (CB1 p200). On 4 March 2025, these orders were made substituting Metroll as petitioning creditor under s 49 of the Bankruptcy Act (CB1 p192).
7. On 18 March 2025, there was a directions hearing. At this directions hearing Mr Isaac's lawyer, Mr Cooke, told the Court Mr Isaac had no objection to the DCT being permitted to be substituted as the petitioning creditor under s 49 of the Bankruptcy Act, but he would not consent to the DCT filing an amended petition which amended paragraph 4 of the petition, "because... if it is, then that will impact our position" (CB1 p209). In other words, Mr Isaac's consent to the DCT filing an amended petition was only provided on the condition that paragraph 4 not be amended (CB1 p209-10). The DCT agreed to this. Orders were subsequently made by the Court, by consent, allowing the DCT to be substituted as the petitioning creditor, and for amended petition to be filed, but upon the agreement that those amendments were to be limited to the formal parts of the petition: changing the name of the petitioning creditor and the debt claimed (CB1 p206) (18 March 2025 Consent Orders).
8. There was nothing in the agreement reached at the 18 March 2025 directions hearing which prevented the DCT from seeking to substantively amend the Creditor's Petition, beyond formal matters that were consented to, once the DCT was substituted as the petitioning creditor. This was confirmed by the parties at the hearing before me. What is clear from the directions hearing on 18 March 2025 was that no complaint made by Mr Isaac's lawyer at that time about the error in paragraph 4. That complaint was made later at the final hearing on 27 May 2025.
9. On or about 27 March 2025, the DCT obtained Mr Isaac's movement records from the Department of Home Affairs (CB1 p468-474). These records identified that Mr Isaac last departed Australia on 9 October 2023 (CB1 p468).
10. On 17 April 2025, pursuant to the 18 March 2025 Consent Orders, and what was agreed regarding the extent of the amendments that could be made to the petition, the DCT filed an amended Creditor's Petition. It merely amended the formal parts of the petition, the name of the petitioning creditor and the debt claimed but otherwise did not amend paragraph 4 (amended Creditor's Petition dated 17 April 2025).
11. Together with the amended Creditor's Petition dated 17 April 2025, the DCT also filed an affidavit verifying the amended petition (DCT verifying affidavit). The verifying affidavit explained that as to the information in paragraph 4 of the original creditor's petition, the DCT referred and relied upon Mr Kato's verifying affidavit. It further explained that based upon Mr Isaac's movement records, Mr Isaac had in fact departed Australia on 9 October 2023, not 21 November 2023. This observation, I note, was consistent with the agreed statement of facts filed by Mr Isaac on 28 October 2024 (see above).
12. On 27 May 2025, the matter came on for final hearing at 2.15 pm before the Judicial Registrar. As a result of a lack of time allocated for the hearing, and because of an outstanding subpoena that had not been complied with, the hearing did not proceed that day and the hearing was adjourned. Despite this, at that hearing Mr Isaac's counsel, Mr Sulan SC, raised, for the first time, that Mr Isaac was taking issue with the erroneous date of departure in paragraph 4 of the amended Creditor's Petition dated 17 April 2025: see CB1 p742 and the transcript at p756. The amendment of paragraph 4 was discussed at the directions hearing by the parties and the Judicial Registrar. At the conclusion of the hearing, both parties consented to orders being made by the Judicial Registrar for, amongst other things, the adjournment of the hearing to 17 June 2025, and for the DCT to file and serve an interim application to amend paragraph 4 of the amended Creditor's Petition dated 17 April 2025 together with any evidence in support by 6 June 2025 (CB1 p750) (DCT's interim application).
13. On 6 June 2025, the DCT filed and served its interim application seeking to further amend the amended Creditor's Petition dated 17 April 2025 under ss 33 and 306 of the Bankruptcy Act.
14. The DCT filed submissions in support of its interim application (CB1 804).
15. Mr Isaac filed two sets of submissions, prepared by his counsel, including submissions dated 16 June 2025 in relation to the interim application. They have some significance on the DCT's case in answer to ground one as discussed below.
16. The DCT's interim application was heard by the Judicial Registrar on 8 September 2025, and orders were made allowing paragraph 4 of the amended Creditor's Petition dated 17 April 2025 to be amended. An amended Creditor's Petition, amended in accordance with the orders entered by the Registrar on 17 September 2025, was filed and served on 19 September 2025. As I have outlined above, the final hearing of this matter is listed on 14 November 2025, before the Judicial Registrar.

APPLICATION FOR REVIEW UNDER S 256(1)

1. The application for review of the Judicial Registrar's decision filed by Mr Isaac is made under s 256(1) of the FCFCOA Act. A review of the exercise of the power by the registrar under s 256(1) is a de novo hearing: see r 3.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), and see Pattison v Hadjimouratis [2006] FCAFC 153 at [3]- [20] (per Nicholson J) and [39] (per Jacobson J); Cassimatis v Australian Securities and Investments Commission [2016] FCA 131 at [12] (per Edelman J.).
2. Such a review is a complete re-hearing of the facts and the law as they exist when the judge reviews the orders made by the registrar. The parties in effect commence the proceeding, in this case the interim application, again, afresh. The original application, the DCT interim application, is the application I must determine. As Mr Haines correctly points out, that application sought to amend paragraph 4 of the amended Creditor's Petition dated 17 April 2025 under ss 33 and 306 of the Bankruptcy Act.
3. In his written submissions dated 29 October 2025, Mr Isaac has chosen, conveniently, to confine his application for review under s 256(1) to two grounds. He submits that if either of these grounds are made out, then, I should dismiss of the DCT's interim application and, I should further dismiss the petition. Both grounds in effect oppose any leave being granted to the DCT under the Bankruptcy Act or the FCFCOA Act to amend the Creditor's Petition as sought in the DCT's interim application filed on 6 June 2025. The two grounds are as follows.
4. The first ground contends that leave should not be granted to the DCT to amend the Creditor's Petition in circumstances where the DCT "knowingly filed a false Creditor's Petition" on 17 April 2025.
5. The second ground contends that leave should not be granted to the DCT to amend the Creditor's Petition in circumstances where the DCT has breached the "Harman undertaking".
6. The parties have filed submissions addressing these two grounds. At the hearing both parties agreed if I found against Mr Isaac, then both parties would be content with the form of orders made by the Judicial Registrar on 8 September 2025 and entered on 17 September 2025. In other words, if I found against Mr Isaac on his application for review, I would affirm the Judicial Registrar's orders.

1. At the hearing on 3 November 2025, Mr D Barnett SC and Mr M Cooke of counsel appeared on behalf of Mr Isaac. Mr B Haines of counsel appeared on behalf of the DCT. I am grateful for the assistance that counsel and their instructing solicitors have given the Court to enable the matter to be dealt with as expeditiously as possible.
2. Under r 3.08 of the GFL Rules it is open to me in such a review to receive into evidence all the evidence that was before the Registrar, and to grant leave to the parties to file further evidence if they so required. Accordingly, at the hearing I received into evidence two Court Books. I marked them Court Book 1 and Court Book 2. Both Court Books contained all the evidence and other documents (for example, submissions) that were before the Registrar. Mr Haines also separately tendered written submissions prepared for Mr Isaac, which had been filed in this Court in response to the DCT's interim application dated 16 June 2025. I included that document as part of Court Book 2.

FIRST GROUND: WHETHER THE DCT KNOWINGLY FILED A FALSE CREDITOR'S PETITION

1. The substance of Mr Isaac's argument on ground one is set out in his counsel's written submissions dated 29 October 2025 in paragraphs [15]-[19] as follows:

15. The position which the DCT was in, as at 17 April 2025, was as follows:

(a) Leave to file a petition had been granted on 18 March on the basis that the only amendments would be the necessary alterations to reflect the DCT's substitution and specifically excluding alteration to the alleged act of bankruptcy;

(b) At the same time, the DCT (and the very officer providing the verification affidavit) actually knew that the date of departure alleged in paragraph 4 of the petition was wrong and was in fact 9 October 2023 (not 21 November 2023).

1. By filing the petition in those circumstances, the DCT knowingly filed a false petition. Rather than verifying the facts in paragraph 4 by a person with knowledge as required by s47(1) of the Bankruptcy Act 1966 and r 4.02 of the Federal Court (Bankruptcy) Rules 2005. (the Act), Mr Hodgetts did not verify paragraph 4 and instead relied on a previous verification which he knew was wrong. The petition was filed in breach of s47 and in circumstances which may appropriately be characterised as an abuse of process.
2. No doubt the DCT was in a bind. The solution was not to file the petition regardless. What the DCT ought to have done was (i) had the existing petition dismissed (i.e. and filed a fresh petition), or (ii) perhaps disclosed that it could not comply with the basis on which leave to amend had been granted and sought to have that order set aside and the question of leave to amend re-agitated.
3. The Court should not permit the current process to proceed in those circumstances. It should not allow any amendment to such an infected process. Finally, these matters are not a formal defect or irregularity capable of being "cured" by an order under s189(2) of the FCFCA Act.
4. Whilst not strictly necessary, this submission was raised before the Judicial Registrar (partly orally and then further in the submission of 10 September 2025) and does not appear to have been dealt with. As should be apparent from the foregoing, the submission does not depend on construing the 18 March 2025 hearing as involving a "forever promise" that no amendment could be made to the act of bankruptcy going forward.

1. At the hearing before me Mr Barnett SC submitted that the evidence he relied upon to support the submission that the DCT knowingly filed a false petition, was the evidence contained in paragraphs 9-12 of the DCT verifying affidavit. Paragraphs 9-12 of the DCT verifying affidavit are as follows:
   1. The statements made in paragraphs 1, 2, 3 and 5 of the amended creditor's petition are within my knowledge and true.
   2. In respect of the statements made in paragraph 4 of the amended creditor's petition, I refer to and rely on the affidavit verifying creditor's petition of Kenichi Kato affirmed on 21 December 2023.
   3. Exhibited to this affidavit at pages 2 to 115 is a true copy of the amended creditor's petition referred to in paragraphs 9 and 10 of this affidavit.
   4. In addition, I have reviewed the movement records of Danny Isaacs (also known as Sarni Adib) (Respondent) and have identified that the Respondent last departed Australia on 9 October 2023 and has not returned to Australia since that date. Exhibited to this affidavit at pages 116 to 122 is a true copy of the movement records obtained by the plaintiff in relation to the Respondent dated 27 March 2025.
2. In particular, he relied upon what the deponent said in paragraphs 10 and 12 and submitted that instead of verifying paragraph 4 himself the deponent relied upon an earlier verification which, it was submitted, he knew was wrong. It was submitted that this knowledge of the erroneous date of departure carries through and led to an "infected process". Presumably this was a reference to the amended Creditor's Petition dated 17 April 2025 filed in this Court.
3. It was submitted the DCT had knowledge as at 17 April 2025 that Mr Isaac had departed Australian on 9 October 2023 and not on 21 November 2023. This was the basis for the submission that by filing the amended Creditor's Petition dated 17 April 2025, the DCT "knowingly filed a false petition". Instead, it was submitted, the DCT ought to have re-listed the proceedings and sought leave to amend the petition to accord with the actual position, that Mr Isaac had in fact departed Australia on an earlier date, namely, 9 October 2023.
4. It was also submitted that the conduct was so grave that it could not be cured by an amendment made under s 306 of the Bankruptcy Act, or s 189 of the FCFCOA Act (a cognate provision to s 306). It was submitted that the conduct was not a formal defect or irregularity, and it was of such a nature that the Court should dismiss the petition as an abuse of process, particularly given the seriousness of the consequence of a bankruptcy proceedings. No authority was provided in support of that proposition. It was submitted that nothing the High Court said in Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 (Adams) restricted the Court from seeing the conduct as a basis for dismissing the petition.
5. It was also submitted on the question of prejudice, in terms of s 306, that by allowing the amendment to the amended Creditor's Petion dated 17 April 2025, Mr Isaac was being denied an opportunity to exploit an error made in the petition at the final hearing. This submission appears to proceed upon the assumption that the amendment proposed would completely change the act of bankruptcy being relied upon. Mr Isaac's position was that paragraph 4 of the amended Creditor's Petion dated 17 April 2025, as drafted, on his construction, only contained one act of bankruptcy. Thus, by allowing the amendment Mr Isaac was being denied the opportunity to challenge the petition on this basis at a final hearing.

1. The DCT's written submissions in reply to the submissions made on the first ground are set out in his written submissions in reply dated 31 October 2025 (read together with the DCT's submissions dated 29 October 2025). The substance of the DCT's submissions on ground one is set out in paragraphs [7]-[11] as follows:

1. Contrary to Mr Isaac's submission, the Commissioner has not "knowingly filed a false petition". A substituted creditor does not bring a fresh petition, but proceeds with the original petition as if they had been the original petitioner. The consequence of substitution is that the substituted creditor relies upon their debt. This enables "the substituted creditor to continue the proceedings commenced by the petition of the petitioning creditor" [citing Re Buckley ex parte James Hardie & Co Pty Ltd (1976) 27 FLR 496 at 501.] 2. Mr Isaac's contention appears to be that part of paragraph 4 of the original creditor's petition could not be proven, so the creditor's petition ought to have been dismissed. As explained in the Commissioner's primary submissions, Mr Isaac contends that paragraph 4 contains a single act of bankruptcy as opposed to more than one act of bankruptcy, which the Commissioner disputes. 3. However, if Mr Isaac had considered that paragraph 4 of the petition, as originally drafted, could not succeed, and that this was a basis to refuse a substitution, he ought to have raised this when the Commissioner's interim application for substitution was before the court. Instead, Mr Isaac consented to the substitution (as he did when a previous creditor, Metroll Pty Ltd, was substituted). Mr Isaac, of course, remains entitled to make arguments concerning proof of the matters in paragraph 4 at the hearing of the petition. 4. On 17 April 2025, Mr Drew Hodgetts filed an affidavit in support of the amended petition. Section 47 of the Act requires that a petition "be verified by a person who knows the relevant facts". Mr Hodgetts' affidavit:

(a) Set out the amounts said to be owed to the Commissioner as at 21 November 2023, and as at 17 April 2025; > > (b) Verified the matters in paragraph 1, 2, 3 and 5 of the petition from his own knowledge; > > (c) Said that he was reliant on the original verifying affidavit, made by Kenichi Kato on 21 December 2023, for the matters in paragraph 4 of the petition; and > > (d) Explained, based on documents he reviewed, that Mr Isaac had left Australia on 9 October 2023 and not returned.

11. Contrary to paragraph [16] of Mr Isaac's submission:

(a) The verification of the petition was in accordance with s 47(1) of the Act. There is nothing perverse about a petition being verified by more than one affidavit, as different people may be required to verify the facts in paragraphs 1 to 5 of a petition;

(b) It was appropriate for the Commissioner to refer to and rely upon Mr Kato's verification of paragraph 4 given that this paragraph was not amended by the substitution. Doing so was not "in breach of s 47 and in circumstances which may appropriately be characterised as an abuse of process".18 Rather, the court had before it the same verifying evidence for paragraph 4 as when the petition was originally filed; and

(c) Mr Hodgetts stated that, based upon his information, Mr Isaac had left Australia earlier than 21 November 2023 - which fact was known to both Mr Isaac (who consented to the substitution) and the Court by reason of Mr Isaac's October 2024 admission.

1. At the hearing before me, Mr Haines submitted that s 306 of the Bankruptcy Act applied to the error in the petition. He submitted that whether the date of departure error was a defect or an irregularity depended on whether it satisfied the test under s 306 as set out in Adams. First, whether Mr Isaac could be reasonably misled by the error in the petition, namely the erroneous date of departure. Second, whether by referring to the wrong date of departure the petition failed to meet a requirement made essential by the Bankruptcy Act.
2. It was submitted that as to the first issue, it was clear Mr Isaac was not misled, his own evidence states that he departed on 9 October 2023. Further, Mr Haines submitted that his own submissions dated 16 June 2023 makes it clear he was not reasonably misled by the error. At paragraph 21 of his 16 June 2021 submissions, it is submitted that Mr Isaac has been preparing to meet a case based on an allegation he had the requisite intention between 21 November 2023 and 21 December 2023. As to the second issue, Mr Haines submitted that a reference to the date of departure was not an essential requirement for establishing an act of bankruptcy under either s 40(1)(c)(i) or s 40(1)(c)(ii). It was submitted that the error falls within s 306 and the proceedings are not invalidated by it, applying Adams.

1. I do not accept the submission made under this ground that the DCT filed a "knowingly filed a false petition" as alleged, and, for that reason, leave should be refused to amend the petition, and that the entire proceedings are invalidated. There are a number of reasons for this conclusion.

1. Section 49 of the Bankruptcy Act expressly provide for the substituted creditor to continue the proceedings commenced by the petition of the original petitioning creditor, "as if the substituted creditor or creditors had been the petitioning creditor". Therefore, when, on 18 March 2025, Mr Isaac consented to the DCT becoming a substituted creditor, s 49 did not allow the DCT to file a fresh petition or start a new proceeding. Rather, s 49 merely allowed the current petition to proceed as if the DCT "had been the original petitioning creditor". Judge Manousaridis in in Miller v Goush (No 3) [2016] FCCA 2491, discussed what this entailed. His Honour held at [6]:

...that means that, to a large extent, the substituting creditor must rely on proof of the matters on which the original creditor relied. That, at the very least, would include proof of the commission of the act[s] of bankruptcy on which the original creditor's petition relied.

1. For this reason, I do not accept Mr Isaac's submission that the amended Creditor's Petition dated 17 April 2025 was a fresh petition. Thus, when the DCT filed and served its amended Creditor's Petition as a substituted petitioner under s 49, the DCT merely became a substituted petitioning creditor, never having maintained that Mr Isaac left Australian on 21 November 2023, but being in the position that he would either have to prove that fact at the final hearing, or seek to amend the petition if they could not do so, before the final hearing.
2. The DCT subsequently chose the latter course by filing its interim application on 6 June 2025 after being told, on 27 May 2025, that Mr Isaac would be seeking to dismiss the petition on the basis of a defect in paragraph 4 of the petition in relation to the date of Mr Isaac's departure from Australia. Prior to then, Mr Isaac had not said anything about the defect, instead he consented at a directions hearing on 18 March 2025 to the amended Creditor's Petition being filed on the basis that paragraph 4 not be amended.

1. I do not consider that the evidence which Mr Isaac relies upon establishes that the DCT "knowingly filed a false petition". The allegation made is very broad and a serious one. It connotes that the DCT purposefully filed a false petition by reason of the inclusion of an erroneous date in the amended Creditor's Petition dated 17 April 2025. That is not what occurred.
2. At the hearing, Mr Isaac submitted that the only evidence relied upon to establish this argument was paragraphs 9-12 of the DCT Verifying Affidavit. In my view, objectively read, those paragraphs do not establish that the DCT "knowingly filed a false petition" as alleged.
3. The critical paragraphs, paragraphs 10 and 12, contain statements that are objectively true. By relying upon the earlier verification by Mr Kato, paragraph 10 cannot be characterised as a breach of s 47 of the Bankruptcy Act. It merely refers and relies upon what was said in the earlier verification affidavit by Mr Kato. The deponent of the DCT Verifying Affidavit cannot know what Mr Kato knew, and in any event, in paragraph 12 the deponent gives his own evidence based on what he in fact knew, which was based on the "movement records" he had obtained on 27 March 2025. He stated truthfully that, based on movement records, Mr Isaac last departed Australia on 9 October 2023 and has not returned since that date.
4. I do not consider this evidence establishes the DCT engaged in the conduct that is alleged by Mr Isaac. It does not establish that the DCT knowingly filed a false petition as alleged. On the contrary, I consider the evidence (including the DCT Verifying Affidavit) viewed in its entirety establishes that the DCT:

(a) was substituted as a petitioning creditor on 18 March 2025 by consent,

(b) was by consent granted leave to file an amended petition in a form which was agreed by both parties on 18 March 2025,

(c) filed an amended petition in accordance with that leave on 17 April 2025 together with a verifying affidavit made under s 47 of the Bankruptcy Act, and

(d) sought to amend paragraph 4 of the Creditor's Petition dated 17 April 2025, after being told at a directions hearing on 27 May 2025 that Mr Isaac would be asking the Court to dismiss the petition on the basis that it contained a false or erroneous date, by agreeing to orders to file an interim application to amend and to remove or exclude the false or erroneous date from paragraph 4.

1. I consider what the DCT did by filing its interim application was to properly seek, at the earliest opportunity, to remove the error, that had been included in the original petition filed by the pervious petitioning creditor (Okaya), from the DCT's amended Creditor's Petition dated 17 April 2025 in advance of the final hearing.
2. There is also another problem with the proposition that the DCT "knowingly filed a false petition" by reason of the inclusion of an erroneous date of departure in the amended Creditor's Petition dated 17 April 2025. Mr Isaac's argument in support of ground one necessarily assumes that paragraph 4 of the petition originally filed by Okaya contained only a single act of bankruptcy. This was a point of contention between the parties in their respective submissions.
3. I do not accept Mr Isaac's reading of paragraph 4. In my view, properly construed, paragraph 4 of the amended Creditors Petition dated 17 April 2025, contains more than one, and possibly four or more, alleged acts of bankruptcy. I consider only one of the alleged acts depends on a departure date - the alleged act under s 40(1)(c)(i) of the Act, on 21 November 2023, that, with the intent to defeat or delay his creditors, the Respondent departed Australia. The other acts do not require any date to be specified. The point is that the erroneous date in paragraph 4 had nothing to do with the other alleged separate acts of bankruptcy set out in paragraph 4.

1. Whether the erroneous date of departure contained in paragraph 4 of the amended Creditor's Petition dated 17 April 2025 invalidates the proceedings is ultimately resolved, in my view, by reference to s 306 of the Bankruptcy Act.
2. Section 306(1) of the Bankruptcy Act provides:

Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.

1. In Adams the High Court considered the operation of s 306. At [27]-[28] the High Court held there were two circumstances where a defect or an irregularity would not be merely formal, and thus on that basis would fall outside the ambit of s 306. Those two circumstances were:

(a) Whether the error could reasonably mislead the debtor as to what is necessary to comply with the notice it is not merely a formal defect or irregularity; and

(b) Whether the error involved a failure to meet a requirement made essential by the Act.

1. Applying Adams, as to the circumstance in (a), I do not consider the error in this case, the erroneous date of departure, could be said to have reasonably mislead Mr Isaac about the creditor's petition. By his own evidence, in an affidavit filed on 6 May 2024 and in an agreed statement of facts dated 28 October 2024, Mr Isaac was well aware of what date he in fact had departed from Australia. He would have been aware at the time the petition was presented to him that the date of departure on 21 November 2023 in the creditor's petition was wrong.
2. As to (b), I do not consider the error involved a failure to meet a requirement made essential by the Bankruptcy Act. This case does not involve a mistake about specifying a date for a single act of bankruptcy. It involves an allegation of a number of acts of bankruptcy under s 40(1)(c)(i), (ii) and (iii) of the Bankruptcy Act.
3. The case of Re Thai; ex parte Commissioner of Taxation [1994] FCA 1071; (1994) 50 FCR 127 (Re Thai) was referred to in submissions by the DCT. It considered the operation of s 306. Even though it was pre-Adams, Re Thai is very instructive for the present case, in my view. Re Thai was a case where the Federal Court was considering multiple acts of bankruptcy under s 40(1)(c). Paragraph 4 of the creditor's petition in that case referred to a date of departure from Australia which was outside the 6-month period before presentation of the petition as required under s 44 of the Bankruptcy Act. However, it also referred to other acts (remaining out of Australia after the day of departure, each day being a separate act of bankruptcy) within the 6-month period. Justice Davies in that case found that the inclusion of the departure date which was outside the 6-month period was confusing in form, and he granted leave to amend paragraph 4 to exclude the reference to the date of departure. Relevantly, Davies J regarded the error as a formal defect or irregularity which could be amended under s 306(1), there being no injustice to the debtor by the amendment.
4. In my view Re Thai has direct relevance to the present case. I consider it supports my conclusion that the inclusion of the erroneous date of departure in paragraph 4 of the amended Creditor's Petition dated 17 April 2025 should similarly be regarded as a formal defect or irregularity within the meaning of s 306(1) of the Bankruptcy Act.
5. For these reasons, I find the erroneous date of departure in paragraph 4 of the amended Creditor's Petition dated 17 April 2025 to be a formal defect or irregularity within the meaning of s 306(1) of the Bankruptcy Act. I now turn to the issue of substantial injustice under s 306. According to Mr Isaac's written submissions dated 16 June 2025 at paragraph [21], Mr Isaac has been preparing to meet a case based on an allegation he had the requisite intention between 21 November 2023 and 21 December 2023, which is the case he will have to meet under paragraph 4 as amended by the orders made by the Judicial Registrar dated 17 September 2025, being the orders the subject of this review. For this resaon I do not consider any substantial injustice has been caused by the defect or irregularity.
6. For all these reasons, I find these proceedings are not invalidated by the erroneous date of departure stated in paragraph 4 of the amended Creditor's Petition dated 17 April 2025. Nor do I consider that the petition should be dismissed for the reason given in this ground by Mr Isaac. I consider the orders amending paragraph 4 of the petition, made after leave was granted to amend by the Judicial Registrar, were appropriate in the circumstances of this case under s 189 of the FCFCOA Act.
7. I reject ground one of the application for review.

SECOND GROUND: WHETHER THE DCT BREACHED THE "HARMAN UNDERTAKING"

1. In his submissions, Mr Isaac conceded that, based on the current authorities, the form of order made in the Victorian Proceedings regarding the filing of affidavits in those proceedings meant the "contents" or the body of Mr Isaac's VSC Affidavit was not subject to the Harman undertaking. In particular, Mr Isaac's counsel referred to Unicomb v Blais (2024) 155 NSWLR 115 (Unicomb); Saridas v Papuan Oil Search Limited [2025] NSWSC 481 at [39] and conceded "that the current position is that the Harman undertaking does not attach to the "contents" of [Mr Isaac's VSC Affidavit]" (see paragraph [21] of Mr Isaac's written submissions dated 29 October 2025).
2. However, it was submitted by Mr Isaac that a formal part of the affidavit, namely "the jurat" at the end of Mr Isaac's VSC Affidavit which identifies where Mr Isaac affirmed the affidavit, namely in Dubai in the United Arab Emirates, was subject to the Harman undertaking. It was submitted because Order 43.01(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Victorian Supreme Court Rules) prescribes as part of the court form for an affidavit in that jurisdiction that the jurat must be completed, the Harman undertaking attached to that aspect or part of Mr Isaac's VSC Affidavit. It was submitted that its disclosure, and subsequent use in the Creditor's Petition dated 17 April 2025, was a breach of the Harman undertaking.
3. In making the submission that the Harman undertaking only attached to the jurat at the end of Mr Isaac's VSC Affidavit, Mr Isaac relied upon a decision of Judge Lucev in Djunaedi v Collins [2025] FedCFamC2G 135 at [54]- [55] (Djunaedi). It was submitted that the rules about the jurat of an affidavit under the Victorian Supreme Court Rules in the present case were analogous to the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules) which provide that a person who intends to appear at the hearing of a petition must file certain documents under the Bankruptcy Rules. In Djunaedi, Judge Lucev held that under the Bankruptcy Rules a person was not compelled to appear, but if they do so, the Bankruptcy Rules compelled the inclusion of certain information. His Honour held in Djunaedi that the Harman undertaking attached to that "particular information" because it was required by the Bankruptcy Rules. Mr Isaac submitted the jurat in his VSC Affidavit was in the same category.
4. On the basis that the Harman undertaking attached to the jurat of Mr Isaac's VSC Affidavit, Mr Isaac submitted that by deploying that information in the Creditor's Petition dated 17 April 2025, first by Okaya, then later by the DCT as the substituted petitioning creditor, Mr Isaac was prejudiced. It was submitted that had Okaya not commenced the proceeding in breach of the Harman undertaking, the DCT would have needed to file its own petition alleging an act of bankruptcy at a time when Mr Isaac satisfied the jurisdiction requirements in s 43(1)(b) of the Bankruptcy Act.
5. It was submitted that but for the filing of the Creditor's Petition dated 17 April 2025 and commencement of proceedings in breach of the Harman undertaking, there is a realistic possibility (if not likelihood) that the Respondent would never have been exposed to sequestration at the hands of the DCT or would have had a good defence to any such attempt. Mr Isaac submitted that the prejudice can only be fully remedied by dismissing the Creditor's Petition dated 17 April 2025, and that this is particularly so in circumstances where there has been no application by the DCT to be released from the Harman undertaking, or where Mr Isaac has not given his consent to the DCT to use the document in these proceedings.
6. At the hearing before me, Mr Barnett SC spoke to these submissions, and said that in the circumstances, the Court should not permit a proceeding commenced in breach of the Harman undertaking to go ahead. He submitted on that basis I should dismiss the Creditor's Petition dated 17 April 2025 as an abuse of process, presumably under s 52(2) of the Bankruptcy Act.

1. The DCT submitted on the second ground that the contention that the Harman undertaking applies to the jurat of Mr Isaac's VSC Affidavit, even though, as Mr Isaac conceded, it did not in this instance apply to the contents or body of the affidavit, is not supported by authority or by persuasive reasoning. The DCT submitted that it has never been suggested in any of the authorities that the mandatory parts of an affidavit court form remain subject to the undertaking, but not the contents or body of the affidavit itself. The substance of the DCT submissions on this ground are set out in paragraphs [15]-[17] of his written submissions dated 31 October 2025 as follows:
   1. If Mr Isaac's submission was accepted, it would have absurd results. For example, and using the rules of this Court, rule 17.10(1)(a) of the 2025 Rules mandates that the first page of the affidavit "must" state the deponent's name (or 'description'). This would mean that an affidavit, which was not read but also not subject to the Harman undertaking, could not be used in a way which revealed the name of the deponent, since the inclusion of that information was compelled. The same reasoning would apply to the date the affidavit was made (rule 17.10(b)), and would even prohibit reference to the page numbers within the affidavit (17.10(4)). Revealing any of this would be a potential contempt, even though the affidavit itself was not subject to the undertaking.
   2. An analogy is said to be drawn with Djunaedi v Collins [2025] FedCFamC2G 135; 393 FLR 282. Djunaedi considered whether an affidavit filed in opposition to a creditor's petition was subject to the undertaking. The Court found that it was because where a person wishes to oppose a sequestration application, that person "must" file an affidavit in support of their grounds of opposition. This meant that such an affidavit could not fall into the same camp as affidavits filed and served under non-compulsive timetable directions, where the undertaking would not apply.
   3. There is no relevant analogy between Djunaedi and the present case for reasons given in the Commissioner's primary submissions and the Victorian Affidavit is not subject to the Harman undertaking.
2. On the question of prejudice, assuming, in the alternative, there had been a contravention of the Harman undertaking, the DCT submitted that how precisely s 43(1)(b) of the Bankruptcy Act would have prevented the Court from having jurisdiction was not developed by Mr Isaac in his submissions.
3. At the hearing before me, Mr Haines spoke to these submissions, reiterating the submission that the Harman undertaking did not attach to Mr Isaac's VSC Affidavit, either to parts of it, or to the contents of the affidavit. He also submitted that this Court's decision in Djunaedi was distinguishable, there being no compulsion for Mr Isaac to file the VSC Affidavit in the Victorian Proceedings like there was in Djunaedi.

1. The "Harman undertaking" derives from an English case, Harman v Secretary of State for the Home Department [1983] 1 AC 280. In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) the High Court stated how the principles relating to the Harman undertaking operated under Australian law as follows:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.

1. While it is still referred to in the authorities as an "implied undertaking", the High Court in Hearne confirmed that it was a substantive obligation under Australian law and one that could only be released by the Court, not by the consent of the party who disclosed the relevant information or document: at [105] - [107].
2. Mr Isaac concedes (correctly in my view) based on the current authorities, including, for example, T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220 (Woods) and Unicomb at [247]-[251] per McGrath J, that the Harman undertaking does not attach to the contents (the body) of Mr Isaac's VSC Affidavit (putting to one side the jurat of the affidavit) because the affidavit was not produced under compulsion. As a consequence of this concession, I only have to determine whether the Harman undertaking attached separately to the jurat of Mr Isaac's VSC Affidavit, and if it did, what the consequence would be for the continuation of the proceedings based on a petition which used that information.
3. There is no authority that I am aware of which has decided that formal parts of any affidavit court form, such as the jurat, are subject to the Harman undertaking where the body of the affidavit itself is not subject to it. In submissions, Mr Barnett SC referred me to this Court's decision in Djunaedi and submitted that I should apply that case by analogy and determine the issue in his client's favour.
4. However, I consider Djunaedi is distinguishable. In Djunaedi Judge Lucev considered whether an affidavit filed in opposition to a creditor's petition was subject to the Harman undertaking. Judge Lucev found that under r 2.06(c) of the Bankruptcy Rules in order to oppose a sequestration application a person had a "mandatory obligation" to file an affidavit containing particular information in support of their grounds of opposition. Judge Lucev found on this basis that the entire affidavit (which contained the particular information) filed under this rule was filed under an obligation of compulsion in the Federal Court. Djunaedi did not consider whether the Harman undertaking attached separately to parts of an affidavit court form. Djunaedi was a very different situation to the present case where the affidavit was not filed under an obligation of compulsion.
5. For completeness, I do not consider the decision of Derrington J in Woods supports Mr Isaacs's contention either. In Woods the Federal Court was not asked to consider whether parts of an affidavit court form were subject to the Harman undertaking. Woods was a case like Unicomb, where the court was asked whether affidavits made in earlier proceedings which were filed voluntarily under a timetable order, were subject to the Harman undertaking. In deciding that they were not subject to the Harman undertaking, Derrington J compared that type of affidavit (that is, one filed voluntarily under a timetable order) with affidavits that were required by the rules of court to be filed, namely affidavits deposing to specific information or categories of information: see Woods at [22]. His Honour found the latter type of affidavit was subject to the Harman undertaking because it deposed to specific information or categories of information required or prescribed by the rules of court. Although Derrington J did not specify, in my view type of affidavit that would fall within this latter category would be an affidavit filed under orders made, for example, in connection with a Freezing Order or a Search Order (also known as an Anton Piller Order).
6. In my view Woods, is not authority for the proposition that the mandatory parts of an affidavit court form, for example, "the jurat", can remain subject to the undertaking, but not the "contents" of affidavit itself. In the present case, I find the Harman undertaking did not apply to Mr Isaac's VSC Affidavit. I also find that it did not apply separately to "the jurat" or any other formal parts of Mr Isaac's VSC Affidavit which are required by the Victorian Supreme Court Rules.
7. As I have found that the Harman undertaking did not apply to Mr Isaac's VSC Affidavit, or parts of it, I do need to consider the submissions made by the parties on the issues of prejudice had there been a breach of the Harman undertaking, and what follows on from any breach.
8. I reject ground two of the application for review.

1. Mr Isaac's application for review of the Judicial Registrar's decision made on 17 September 2025 has been unsuccessful. Having conducted a de novo review of the DCT's interim application, I would allow the DCT to amend its petition.
2. Consequently, I will make orders dismissing the application for review with costs. I will also make an order affirming the Judicial Registrar's orders.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

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