JB Solicitors Pty Ltd v Cam, in the matter of the Bankrupt Estate of Cam

Was the bankrupt on notice of his bankruptcy and the need to file his statement of affairs? 8 As to the first issue, for the following reasons, I am satisfied that, on the evidence, the bankrupt has been on notice since at least 14 July 2023 (upon the making of the sequestration order), and again on 12 September 2023, following his review application being dismissed by the fact of the bankruptcy. I am also satisfied that Mr Cam has been aware for a long time of the need for him to file his statement of affairs. 9 By his affidavit sworn 17 May 2024, Mr Sampson deposes that, on 11 July 2023, Mr Cam was made bankrupt as a consequence of a sequestration order made by the Federal Court of Australia on the petition of JB Solicitors Pty Ltd. On 14 July 2023, a person in the employ of Mr Sampson emailed the bankrupt with a bundle of documents, including an explanation that s 54(1) of the Bankruptcy Act requires Mr Cam to file with the Official Receiver a statement of his affairs and to provide to him as trustee a copy of his statement. On 14 July 2023, Mr Cam replied to that email appearing to request that the bankruptcy be put on hold. On 21 July 2023, Ms Evans, a business partner of the trustee, on instructions replied to Mr Cam's email of 14 July 2023. 10 On 8 August 2023, Ms Evans on instructions from the trustee, sent a further email to Mr Cam in relation to his failure to file a statement of affairs and calling for him to do so within 14 days of 7 August 2023. Separately, on 1 August 2023, Mr Cam had filed an application for review of the sequestration order made by Registrar Ditton. On 11 September 2023, Perram J delivered judgment in that review application, ordering that it be dismissed: JB Solicitors Pty Ltd v Cam, in the matter of the Bankrupt Estate of Cam [2023] FCA 1095. 11 On 12 September 2023, Ms Evans sent a further email to Mr Cam calling for the statement of affairs to be filed within 14 days of 12 September 2023. Further requests were made after this time, however, as is clear from the foregoing, the bankrupt had not filed a statement of his affairs. 12 Mr Borg, on behalf of Mr Cam, submitted that it should be accepted Mr Cam was unaware of his obligation to file a statement of affairs "because he doesn't understand anything [to do] with the matter". I do not accept this submission. Mr Cam made application to set aside the sequestration order and attended and participated in the review proceedings before Justice Perram. Mr Cam has attended this Court and said previously that he intended to file his statement of affairs. It is clear from the foregoing that Mr Cam was on notice of the bankruptcy and of the need to file his statement of affairs. Mr Cam had been given numerous opportunities during the progress of this proceeding and has chosen not to file a valid statement.

Should the Court exercise its discretion and make the order? 13 Accordingly, the principal issue before me is whether the Court should exercise its discretion to make an order under s 146 of the Bankruptcy Act. The Bankruptcy Act does not prescribe any particular matters to be taken into account in the exercise of the Court's discretion. However, the provision's statutory purpose and jurisprudence indicate that relevant considerations include, without being exhaustive: whether interested parties have been notified (Roufeil (Trustee), in the matter of Jarvie (Bankrupt) [2015] FCA 232 at [7], [14] per Gleeson J); the adequacy of the steps taken to identify potential creditors and an opportunity for them to be heard (Re Sturt; Ex parte Official Trustee in Bankruptcy [2001] FCA 1649; 117 FCR 1 at [19] per Sackville J), the adequacy of the steps taken by the trustee to identify the known assets of the estate and whether the bankrupt has had an opportunity to address their non-compliance. 14 The applicant pointed to the following considerations as weighing in favour of the Court exercising its discretion to make an order under s 146: (1) The Trustee has given notice of this application to the Bankrupt, and all known creditors and potential creditors; (2) The Trustee has taken appropriate steps to identify any creditors (and assets) of the Bankrupt, including by writing to all major banks, share registries, the Australian Taxation Office, and the Bankrupt's former lawyers, as well as by conducting property searches and even publishing an advertisement in the local newspaper for the Vietnamese community of which the Bankrupt forms part - ultimately, the Trustee believes there to be two creditors owed a total of $135,627. (3) The only asset realised in the bankruptcy is $152,247.65 from the sale of real property, with no further recoveries expected; (4) As already addressed, the Bankrupt has been given ample opportunity to file a statement of affairs (including now, in the course of this proceeding) but has still not done so. 15 The applicant submitted that, after the cost of the bankruptcy, which he says has "necessarily been increased by the Bankrupt's non-cooperation", it is estimated that he will be in a position to distribute approximately $70,465.79, amounting to approximately 51c/$ dividend rate. The applicant says that if the trustee is not permitted to make that distribution, but rather is put to further cost by taking other steps, that would necessarily be to the prejudice of the bankrupt's creditors, delaying the distribution of their dividend and likely reducing it through additional costs. That being so, the trustee should be permitted to proceed to distribute dividends in accordance with Div 5 of Pt VI of the Bankruptcy Act. 16 The bankrupt made the following submissions in opposition: First, that his non-compliance, whilst not disputed, could be explained: he continues to dispute the debt purportedly owed to JB Solicitors, and he does not want to complete a statement of his affairs because he does not want JB Solicitors to receive monies he thinks they are not entitled to. Secondly, Mr Cam queried the size of his asset pool (believing that the sale of the house should have generated a larger sum). Thirdly, as to the amount owing to JB Solicitors, Mr Cam made submissions as to the circumstances giving rise to the debt and why he continues to dispute it. Fourthly, Mr Cam appeared to submit that he owes money to other friends who are not listed as creditors and accordingly, that the trustee's list is incomplete. 17 The purpose of permitting applications to be made by trustees under s 146 is to ensure that the absence of a statement of affairs does not prejudice those with an interest in the bankrupt's estate: Official Trustee in Bankruptcy, in the matter of Shaw [1999] FCA 968 at [4] per Gyles J. It was clear from the first submission made by the bankrupt that the continued failure to provide a statement has been motivated by his desire that JB Solicitors, an entity with an interest in his affairs, is prejudiced. 18 I reject the submission made by the bankrupt, through Mr Borg, that this Court should not exercise its discretion, because the bankrupt wants to re-agitate his challenge of the debt owed to JB Solicitors. As observed by Sackville J in Re Sturt, s 146 applies to "a case where the bankrupt's omission to file a statement of affairs is the result of a wilful refusal to do so or neglect of his or her statutory obligations": at [14]. It was evident from the submissions made by Mr Borg on behalf of Mr Cam and Mr Cam's own submissions through the interpreter, that the continued assertions challenging the JB Solicitors' debt are the same as those asserted before, and rejected by, Perram J in Mr Cam's unsuccessful review application of the sequestration order. 19 The trustee deposed that, as at 17 May 2024, the only creditor that has lodged a proof of debt in respect of the estate is JB Solicitors, claiming the sum of $136,112.28 on 13 October 2023 and a debt due to the Commonwealth Bank of Australia for $4,155.00 for which a proof of debt had not been lodged. I note the submission made by Mr Cam that this is not the entire list of creditors. At hearing, Mr Cam was informed that it remains open for him to file a statement of affairs to ensure that all potential creditors come to the attention of the Official Receiver and the trustee. Orders were made giving Mr Cam until 21 August 2024 to file his statement of affairs. No such proper statement has been filed. 20 The Court must necessarily be satisfied that all reasonable attempts have been made to ascertain all of the bankrupt's creditors. The evidence revealed that letters were issued to all major financial institutions in Australia notifying them of the appointment of the trustee and seeking confirmation as to whether any property is held in the name of the bankrupt. The Commonwealth Bank of Australia identified, as above, a debit balance of $4,155.00. Letters were also sent to several company share registries notifying them of the trustee's appointment and requesting they identify any shareholdings of Mr Cam. Only one registry identified holdings but were unable to confirm whether it was the bankrupt. In addition, a national property inquiry was undertaken via Equifax by name as well as a number of New South Wales title searches. 21 On 14 July 2023, the trustee corresponded with the Australian Tax Office to ascertain whether the ATO had any claim against the estate, which the ATO advised on 28 September 2023 that it did not. However, it noted that a claim may arise as Mr Cam had not lodged a tax return for the year 1 July 2022 to 30 June 2023. Furthermore, the trustee made contact with solicitors who had previously acted for Mr Cam to advise each of them to complete a proof of debt if they claim to be a creditor of Mr Cam. 22 On 15 February 2024, Ms Evans, on instructions from the trustee, arranged for an advertisement to be placed with CHIÊU DƯƠNG Newspaper, a daily newspaper published in Vietnamese out of Cabramatta, which provided notice that the trustee intended to declare a first and final dividend to creditors. That advertisement was published on 24 February 2024. 23 I am satisfied, based on this evidence, that all reasonable attempts have been made by the trustee to ascertain all creditors, save that I note the submission of Mr Cam at hearing regarding there being additional creditors, which is dealt with further below. 24 As to the ascertainment of the extent of the assets within the estate, the trustee deposed that he was satisfied there were only two real properties for which the bankrupt had been registered proprietor at, or just prior, to his appointment as trustee. In respect of the first property (the Cabramatta House), the bankrupt was a joint registered proprietor with Ms Vu from 25 June 2014 to 29 September 2023, at which time a transfer occurred, and Ms Vu became the sole registered proprietor. A mortgage in favour of Westpac was registered on 25 June 2014 and discharged on 29 September 2023, and a caveat registered by the NSW Crime Commission was lodged on 29 April 2023. 25 In respect of the second property (the Cabramatta Apartment), Mr Cam and Ms Vu were joint registered proprietors from 26 June 2001 to 9 May 2023, when a transfer was registered to Quoc Liem Tran, an arm's length transaction to an unrelated party, that was approved by the NSW Crime Commission, which had registered a caveat on 29 April 2023. Mr Tran, the purchaser of the Cabramatta Apartment, responded to correspondence of the trustee that by orders of the Federal Circuit and Family Court of Australia made on 16 May 2023, 50% of the proceeds from the sale of the Cabramatta Apartment that Mr Cam was entitled to had been paid to the NSW Crime Commission and then sent to the NSW Trustee and Guardian in accordance with the orders of Cavanagh J made on 27 April 2023 in Supreme Court of NSW proceedings. 26 On 28 September 2023, a representative of the NSW Crime Commission emailed Ms Evans and other parties confirming that the Supreme Court proceeding had been dismissed and the NSW Crime Commission caveat over the Cabramatta House had been withdrawn. On 29 September 2023, settlement occurred in relation to the Cabramatta House and the net sum of $88,235.58 being Mr Cam's entitlement to the proceeds of sale of the Cabramatta House pursuant to orders made by the Federal Circuit and Family Court on 16 May 2023, was received into the estate of Mr Cam. On 21 December 2023, the estate of Mr Cam received $64,012.07 from the NSW Trustee and Guardian in relation to Mr Cam's interest in the Cabramatta Apartment that settled on 9 May 2023. 27 In this respect, I note that the bankrupt disputed the size of the asset pool. Mr Borg submitted that it should not be accepted that the asset pool was so small, given the house was said to be worth $1 million. I was taken by Mr Edney, counsel for the trustee, to the evidence concerning the recovery of assets for distribution. This evidence included consent property orders made by the Federal Circuit Court and Family Court of Australia. It is evident from those orders that the bankrupt was not entitled to half of the agreed value of the house but rather an amount, after the payment of outstanding rates and taxes, the mortgage, 65% of the proceeds being payable to his wife and an extra $102,486.82 of what remains. Accordingly, I do not accept Mr Cam's assertion, through Mr Borg, that doubt should be placed on the amount recovered by the trustee. 28 The trustee deposes that on the basis of recoveries made to date and payments required to be made out of the funds held by the estate of Mr Cam, that JB Solicitors and the Commonwealth Bank of Australia will receive approximately 51c / $. Though, I note that estimate was given before the further protraction of this proceedings and will no doubt now be less. 29 On 6 February 2024, the trustee issued a notice to creditors of his intention to declare a first and final dividend pursuant to ss 140(3), 145(3) of the Bankruptcy Act. The notice was issued to all known or potential creditors, being JB Solicitors, Commonwealth Bank of Australia and LN Legal. The trustee deposes that no other creditors as at 17 May 2024 have come forward as a result of the issuance of the notice. 30 Given Mr Cam's submission at the hearing on 7 August 2024 about there being additional, unidentified creditors, I made an order that Mr Cam was to file his statement of affairs by 21 August 2024. The Court was notified on 21 August 2024 that Mr Cam, whilst not filing his statement of affairs in the approved, comprehensive form, had provided a handwritten list of five creditors to the trustee. As a consequence, the trustee informed the Court, filed further short submissions and proposed varied orders responsive to this development. 31 The trustee submitted in summary that Mr Cam's statement of affairs was not valid for the purposes of the Bankruptcy Act as it failed to comply with s 6A(2)(a), (c) in failing to be in an approved form and failing to include a declaration that the statement is correct. The trustee referred this Court to Wangman v Official Receiver, Insolvency & Trustee Service Australia [2006] FCA 202 at [51]-[52] per Collier J, for the proposition that, Mr Cam's failure to include all of the comprehensive detail required of the statement of affairs amounted to a failure to "genuinely attempt" completion of the statement. Accordingly, it was said that the "lack of information inserted … into the … Statement of Affairs meant that the document was not a valid statement of affairs within the meaning of s 54(1) Bankruptcy Act": at [55]. The trustee says that, although defective, the statement does identify creditors that Mr Cam claims to owe money to, who are not yet known to the trustee. 32 The trustee then proposed, after the hearing, for different orders to be made by the Court, that accounted for the five creditors that Mr Cam had identified. He proposed that before any distribution could be made that, the trustee would take the steps it would otherwise be required to take, as if the creditors had been identified in a proper statement of affairs, namely, to give notice under s 140(3) of the Bankruptcy Act to those potential creditors and to give them an opportunity to file a proof of debt. 33 The Court asked, in writing, whether Mr Cam consented to these proposed orders. Mr Cam did not, and the matter was listed for further hearing to deal with these proposed orders. On 23 August 2024, Mr Cam filed a second incorrect and largely incomplete Statement of Affairs, under Pt XI of the Bankruptcy Act (which deals with deceased bankrupt estates). Then, on 27 August 2024, the day before the relisting, Mr Cam informed the Registry, amongst other things, that he had "just finished with his lawyer" and advised that he needed an adjournment to fill an "application of Anul" as he needed to dispute the "default". Mr Cam was informed by the Registry that any application for an adjournment must be made by filing an application and an affidavit in support of the application. The Registry also informed Mr Cam that any such application could be heard and determined at the hearing on the following day. 34 At the subsequent hearing of 28 August 2024, Mr Borg and Mr Cam attended (with Mr Cam assisted by an interpreter). Their submissions were to in effect reagitate the arguments they had previously made, disputing that the petitioning creditor, JB Solicitors, is a creditor, asserting that no debt is owed to JB Solicitors or if there is, it is less than what is contained in the bankrupt's asset pool and disputing that the trustee had correctly identified the extent of the asset pool. 35 Further, it was submitted by Mr Borg on behalf of Mr Cam, that he was bringing an application to annul the bankruptcy. At hearing, Mr Borg handed up and relied upon a Notice to creditors of annulment (Form B11) and an affidavit sworn 28 August 2024. There was no application for annulment before the Court. In that affidavit, Mr Cam stated, amongst other things, he could not file a statement of affairs because he does not have any information regarding his "x wife selling [his] properties and still hasn't sold the other property", seeking that the "default judgment" be removed as the "applicant is not entitled to any money that's in their trust account as it's a secure contract" and that he is now seeking legal advice and "now appointed a lawyer". 36 As to the latter, I note that Mr Cam had identified "Quy Lawyers" as acting for him. However, the trustee relied upon an affidavit affirmed 27 August 2024, in which Quy lawyers had confirmed that as at 12:28pm on 27 August 2024, after Mr Cam's email to the parties and the Court at 11:12am on that day stating that he had "just finished with his lawyer", that Mr Quy, solicitor, had had no dealings with Mr Cam and was not familiar with the application commenced in the Federal Court. Mr Borg made submissions from the Bar table disputing this, but I had no evidence before me to be satisfied that this was the case. 37 Accordingly, on the third occasion that this matter was before me, I had no application for annulment nor any proper evidence with respect to it, having only before me Mr Cam's notice to creditors of annulment. Of course, it remains open to Mr Cam to file his annulment application. In addition, no application for adjournment appeared to be agitated, but to the extent that it was, I would have refused the application on the same bases as previously. It remains my view that Mr Cam continues to do anything he can to stymie the administration of the bankruptcy. The possibility of the future filing of an application for annulment does nothing to dissuade me from exercising my discretion to make the proposed orders. 38 Nothing in the submissions made by Mr Cam nor Mr Borg caused me to not accept the evidence of the trustee as to its attempts to account for the extent of the bankrupt estate and to identify creditors. 39 I am satisfied, based all the evidence referred to above, that all reasonable attempts to date have been made by the trustee to ascertain all creditors. Further, I am satisfied that the course proposed by the trustee to verify the circumstances of the possible additional creditors identified by Mr Cam is appropriate and that once those steps have been taken a distribution may be made. By reason of all of the above circumstances, I am satisfied that sufficient steps have been taken to ensure that prejudice is not suffered by those with an interest in the bankrupt's affairs, given the trustee has satisfied me that it has made adequate inquiries to establish whether there are further creditors of the bankrupt. 40 I accept the submission of the trustee that to refuse the application on the basis that a bankrupt disagrees with the validity of an underlying debt which has been found to be legitimate in two prior proceedings would be highly inappropriate and prejudice creditors. The trustee has an obligation to distribute dividends to creditors who have proved their debts with all convenient speed: Bankruptcy Act s 140(1). This includes necessarily where no statement of affairs has been filed to do what the trustee has done and seek the orders it has sought under s 146. 41 In light of the continued refusal of Mr Cam to make and file a statement of affairs in its proper form, it is appropriate that the trustee proceed with the administration of the bankrupt estate, by the distribution of dividends. The delay in the estate's administration, caused by Mr Cam's continued failure to file a proper statement, has and continues to cause, significant prejudice to those with interests in the estate.

Conclusion 42 In the circumstances, I will make orders that, pursuant to s 146 of the Bankruptcy Act, there be a distribution of dividends amongst the creditors of the estate of Dai Thanh Cam, subject to notice being given to those potential creditors in Mr Cam's statement of affairs to lodge a proof of debt, and orders that the trustee's costs, of and incidental to this application be paid out of the estate of the bankrupt. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.