Nilant v Macchia

REASONS FOR JUDGMENT 1 The applicant seeks two orders. The first is an order that the filing of her statement of affairs ("the Statement") with the Trustee be recognised for the purposes of s 54 of the Bankruptcy Act 1966 (Cth) ("the Act"). The second is that the time limited by subs 149(3) of the Act for the period of the bankruptcy in this matter be abridged to a day after the date of filing the Statement with the Trustee. It would appear that the intention is that the second order be made pursuant to subs 149(4) in that subs 149(3) applies only to bankruptcies occurring before 1 July 1992. 2 Subsection 54(1) provides: "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 or she is notified of the bankruptcy: (a) make out and file in the office of the Official Receiver for the District in which the sequestration order was made a statement of his or her affairs; and (b) furnish a copy of the statement to the trustee. Penalty: 5 penalty units. … " 3 The applicant's bankruptcy commenced on 25 September 1995. 4 The statement of affairs which the applicant wishes to have recognised as being filed with the Registrar in Bankruptcy on 23 October 1995 was given to her trustee on that date. The applicant's trustee has filed an affidavit in support of this application. The trustee states that he believed that the Statement had been filed with the Registrar in Bankruptcy at the same time as it was given to him. The Registrar in Bankruptcy did not receive the Statement at that time. On 13 September 1996 he wrote to the trustee requesting the Statement. The trustee states in his affidavit that the Statement was filed at the Registry on 19 September 1996. 5 Relevantly s 149 provides: "149. (1) Subject to section 149A, a bankrupt is, by force of this subsection, unless sooner discharged in accordance with Division 3, discharged from bankruptcy in accordance with this section. (2) … (3) … (4) If the bankrupt becomes a bankrupt after the commencement of section 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. …" Section 27 of the Bankruptcy Amendment Act 1991 (Cth) commenced on 1 July 1992. 6 Relevantly the Court has the following powers: "30. (1) The Court: … (c) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter." … 33. (1) The Court may: … (d) extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time." 7 The Court cannot exercise its jurisdiction under par 33(1)(c) to "abridge" the time provided for in subs 149(3). That subsection is applicable to a bankrupt who became such before the commencement of s 27 Bankruptcy Amendment Act 1991 (Cth) and also provides for discharge at the end of the period of three years from the date on which the bankrupt filed his or her statement of affairs. This is the case even where the statement of affairs was not filed on time by mistake or through no fault of the debtors. It was so held in Nilant v Macchia (1997) 148 ALR 329 on the ground that the time after which a bankrupt is automatically discharged under subs 149(3) is the time after which something happens by law, not the time "for doing any act or thing" being the words relevantly used in par 33(1)(c). In so holding the Full Court in Nilant (Spender, Carr and Finn JJ) overruled on that point the decision in Re Rhode (1993) 42 FCR 149, which had been followed in a number of cases described in Nilant at 427. 8 It is incontestable that the decision in Nilant is applicable also to the utilisation of par 33(1)(c) in relation to subs 149(4). 9 In Re Rhode Burchett J also granted a declaration under par 30(1)(b) of the Act to the effect that the bankrupt's filing of her statement of affairs was an effective filing for the purposes of subs 149(3)(a). That aspect was not the subject of consideration in the ratio of the Full Court in Nilant. The question arises whether in this matter the Court could make a declaration pursuant to s 30(1)(b) to the effect that the Statement was effectively filed for the purposes of subs 149(4) of the Act. 10 In allowing the appeal in Nilant the Full Court recognised the injustice which resulted and said at 428: "We also agree, respectfully, with Burchett J that this situation ought to be looked at by those responsible for amending the Act. It is unlikely that Parliament, in introducing the new regime now found in Pt VII of the Act, intended a statutory framework so rigid as to be unfair in particular circumstances. In our view, it would work an injustice in factual situations (such as those in Rhode and the significant number of cases which followed that decision) where there is a reasonable excuse for a bankrupt not filing his or her statement of affairs within time. It is not a complete response to point to subdiv B of Div 3 of Pt VII as providing a means of application for early discharge. Eligibility under that subdivision is very restricted. The result is that, in our opinion, the present matter has proceeded on an assumption which did not have a secure legal foundation. We will order that the matter be remitted to the learned trial judge for further consideration. It may be that some other basis can be advanced ( apart from s33(1)(c)) for treating one or other of the statements of affairs filed by the respondent as having been duly filed in accordance with the Act." (Emphasis added). 11 Parliament not having amended the Act, unless a basis other than s33(1)(c) is found for achieving the same result, the Act would continue to work an injustice, this time in relation to the present applicant. 12 I am not satisfied that exercise by the Court of the declaratory power in s 30(1)(b) constitutes an "other basis" for resolving the issue, to which the Full Court made reference in the second paragraph in the preceding quotation. It is the case that s 30(1)(b) gives the Court wide powers: Re Ellis; Ex parte Jefferson (Drummond J, unreported, 17 February 1995). However the making of such a declaration could not have the legal effect of achieving through the back door what the Full Court has said is not available through s 33(1)(c) in circumstances where the possibility of such a declaration was clearly before the Full Court. The circumstances here are also entirely distinguishable from those in Sofia v Pattison and Official Receiver (NSW) (Finkelstein J, unreported, 20 October 1997) where copy statements were left on the counter of the Registry, as distinguished from filed with the Trustee. 13 For these reasons I consider that the application must be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON