Vince (Trustee), in the matter of Sopikiotis (Bankrupt) v Sopikiotis [2012] FCA 573 | Case summary

Judgment (5 paragraphs)

[1]

Pursuant to section 30(5) of the Bankruptcy Act 1966 (Cth), on or before 21 May 2012 the Respondent, in accordance with the requirements of section 54(1) of the Bankruptcy Act 1966 (Cth), make out and file with the Official Receiver a statement of her affairs in the form of the pro-forma statement of affairs provided by the Insolvency and Trustee Service Australia, and furnish a copy of the statement to her trustee, which statement is to be complete, including by providing at least the following information: (a) The name and address of a contact person who does not live with the Respondent; (b) Details of any passports held by the Respondent including the passport number(s), expiry date(s) and country(s) of issue; (c) Details of any driver's licence held by the Respondent including the licence number, expiry date and state of issue; (d) The Respondent's employer's name and address; (e) Details of the Respondent's superannuation fund(s); (f) The Respondent's date of birth; (g) All other names used by the Respondent in the past 10 years; (h) Details of the two previous address(s) occupied by the Respondent, including, for each property, whether the Respondent owned the property and, if so, the date on which each property was sold; (i) Details of all bank accounts held by the Respondent with any bank, building society, credit union or other financial institution within the past 12 months including: (i) the full name of the bank or financial institution; (ii) the branch name; (iii) the account number and type; (iv) the current balance; and (v) whether the account is a joint account. (j) Details of all superannuation and life insurance policies held by the Respondent including: (i) the name of the fund; (ii) whether the fund is regulated; (iii) the balance of the fund; and (iv) the type of fund. (k) Details of any vehicles owned by the Respondent or in which the Respondent has an interest including: (i) the type of vehicle; (ii) the make of vehicle; (iii) the model of the vehicle; (iv) the year of the vehicle; (v) the registration of the vehicle; (vi) the estimated re-sale value; and (vii) details of any amounts owed in respect of the vehicle. (l) Details of any real estate (land or buildings) owned by the Respondent within Australia or overseas including, for each property: (i) the address of the property; (ii) the date the property was acquired or purchased; (iii) the amount paid to acquire or purchase the property; (iv) the estimated resale value of the property; and (v) details of how much the Respondent owes to creditors who hold security over the property. (m) Details of all secured creditors including, for each secured creditor: (i) the creditor's name; (ii) the creditor's postal address; (iii) the account/loan number; (iv) the type of security; (v) the date the security was given; (vi) a description of the secured asset; (vii) the location of the asset; and (viii) the estimated re-sale value of the asset. (n) Details of all unsecured creditors including, for each unsecured creditor: (i) the creditor's name and address; (ii) the nature of the debt; (iii) the account number; (iv) the month/year the debt was incurred; (v) the total amount owing; (vi) whether the unsecured creditor is a related party; and (vii) whether the debt is a joint debt.

REASONS FOR JUDGMENT 1 On 5 July 2011, the respondent ("Ms Sopikiotis") was declared a bankrupt following the making of a sequestration order against her estate. The applicant ("the Trustee") is the trustee of the bankrupt estate of Ms Sopikiotis. By an application filed on 21 February 2012, the Trustee sought, amongst other relief, an order that Ms Sopikiotis file a statement of affairs in accordance with s 54(1) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"). Having determined that the Trustee's claim for an order that Ms Sopikiotis file a statement of affairs should be heard separately and earlier to the remainder of the trustee's application, a hearing was held on 7 May 2012 for that purpose. 2 On 1 May 2012, Ms Sopikiotis informed the Court by correspondence dated 30 April 2012 that she would be submitting a statement of affairs on 4 May 2012. Late on 4 May 2012, a document purporting to be a further statement of affairs filed by Ms Sopikiotis was received by the Insolvency and Trustee Service Australia ("ITSA"). Despite that, the Trustee maintained his application for an order that a statement of affairs be required to be filed on the basis that what had purportedly been filed was so deficient as to not constitute a statement of affairs at all. 3 No application was made by Ms Sopikiotis to vacate the hearing listed for 7 May 2012. When the matter was called on for hearing on that date, Ms Sopikiotis did not appear. In the circumstances, I determined that I should hear the application for the order sought by the Trustee in the absence of Ms Sopikiotis. 4 On 7 May 2012, I made orders including an order to the effect that Ms Sopikiotis file with the Official Receiver a completed statement of affairs which included the particular information specified in that order. What follows, are my reasons for making those orders. 5 Ms Sopikiotis has been notified on a number of occasions of the need for her to file a statement of affairs. She purported to file a statement of affairs on 20 July 2011 ("the first purported statement of affairs"). On lodging that document with ITSA, she was advised that it was not likely that it would be accepted and in late July or early August 2011, the Official Receiver notified Ms Sopikiotis that the first purported statement of affairs was not accepted and that the incomplete document had been returned to her for completion. 6 As I have said, on 4 May 2012, Ms Sopikiotis filed a further purported statement of affairs with ITSA ("the second purported statement of affairs"). At the time that document was filed, Ms Sopikiotis was advised that it would likely be rejected by ITSA. 7 Both the first and second purported statement of affairs filed by Ms Sopikiotis were made on pro forma documents provided by ITSA. Both such documents were substantially incomplete because of the failure of Ms Sopikiotis to include information in relation to a large number of categories specified by the form. The nature and extent of Ms Sopikiotis's failure to provide the required information is identified in Order 1 of the orders of 7 May 2012 which in paragraphs (a) to (n) identify the information called for by the ITSA form but not provided by the second purported statement of affairs. 8 The obligation upon Ms Sopikiotis to file a statement of her affairs with the Official Receiver and provide a copy to her trustee is found in s 54(1) of the Bankruptcy Act. Section 6A(2) of the Bankruptcy Act, provides for the standard contents of a statement of affairs to be in an approved form. The ITSA pro forma form, to which I have earlier referred, is the prescribed form. Accordingly, the s 54(1) obligation on Ms Sopikiotis is to provide her statement of affairs setting out the information of the kind required by the prescribed form. 9 As Collier J reasoned at [55] of Wangman v Official Receiver, Insolvency and Trustee Service Australia [2006] FCA 202, a document purporting to be a statement of affairs will be defective and non-compliant with the obligation in s 54(1) of the Bankruptcy Act, where much of the information sought by the prescribed form has not been provided. 10 The extent to which a failure to provide requisite information would render a statement of affairs non-compliant, is a matter that may need to be considered on a case to case basis. In this case, and in relation to each of the purported statements of affairs filed by Ms Sopikiotis, the extent of the failures to provide information has been substantial, and I have no doubt that the documents in question fail to satisfy the obligation required of Ms Sopikiotis by s 54(1) of the Bankruptcy Act. 11 As Ms Sopikiotis has not complied with the requirements of that provision, despite a number of requests that she do so, I considered it appropriate in the exercise of the Court's power under s 30, that an order be made requiring her to file a statement of affairs in accordance with the requirements of s 54(1) of the Bankruptcy Act. In order to clearly identify the nature of the deficiency in the information previously provided by Ms Sopikiotis, the order I made identifies (in a non-exclusive way) the information which is to be included in the statement of affairs required to be filed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Vince (Trustee), in the matter of Sopikiotis (Bankrupt) v Sopikiotis

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