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I Object!: The Importance of Strict Compliance with the Notice of Objection Regime

By Bonnie McMahon an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In the recent decision of Jones and Inspector-general in Bankruptcy [2018] AATA 3260 (“Jones”), the Administrative Appeals Tribunal has made it clear that a trustee in bankruptcy who files a notice of objection to discharge, needs to comply strictly with the requirements of the s 149D(1) of the Bankruptcy Act 1966 (Cth) (“the Act”), otherwise it is likely that the decision will be cancelled on review, either by the Inspector-General in Bankruptcy or the Tribunal.

The Ground

In Jones, the trustee in bankruptcy (“the Trustee”), had filed a notice of objection to discharge, on the ground set out in s 149D(1)(d) of the Act, that:

the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request.”

As identified by the Tribunal, this provision contains five equally important elements which are as follows:
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The Administrative Appeals Tribunal and the Bankruptcy Act – How far does its jurisdiction extend?

By Bonnie McMahon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In the recent Administrative Appeals Tribunal (“the Tribunal”) decision of Lavin and Inspector General in Bankruptcy [2016] AATA 798 (“Lavin”), the Inspector-General in Bankruptcy (“Inspector-General”) has successfully argued that the Tribunal does not have the jurisdiction to:

  • review a decision of a Trustee in Bankruptcy (“the Trustee”) in relation to an assessment of the bankrupt’s income and contributions, when the Inspector-General refused to conduct a review of the Trustee’s decision under section 139ZA(5) of the Bankruptcy Act 1966 (Cth) (“the Act”): and
  • determine that a refusal made by the Inspector-General to conduct a review of the Trustee’s decision under section 139ZA(5), is as a matter of fact a different decision or decisions than that stated by the Inspector-General.

The Applicant in Lavin was a bankrupt seeking a review of the decision her Trustee had made, in relation to her income and contributions under section 139Y of the Act. The Applicant had previously sought an internal review of the Trustee’s decision by the Inspector-General. The Inspector-General had refused to undertake this review under section 139ZA(5), and as a result the Applicant had applied to the Tribunal seeking a review of the Inspector-General’s decision under section 139ZF(b).
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Section 30 of the Bankruptcy Act

By  Bonnie McMahon a Paralegal of Matthews Folbigg, with Stephen Mullette in our Insolvency, Restructuring and Debt Recovery Group

What problems can’t section 30 of the Bankruptcy Act 1966 (Cth) (“the Act”) solve? Very few, if the recent Federal Circuit Court (“FCC”) decision of Barnden (As Trustee for the Bankrupt Estate of Cooper) v Dunn & Anor [2016] FCCA 2349 (“Cooper”) is correct. In Cooper the FCC considered an application made by a trustee in bankruptcy, for the sale of a bankrupt’s jointly owned real property.

Sometimes a ‘fast game is a good game’ and, in an economical 8 paragraphs, the FCC in Cooper, determined that:

  • It had jurisdiction to hear the matter under s 27 as a bankruptcy matter;
  • The Trustee’s application under section 66G of the Conveyancing Act 1919 (NSW) (“66G“) was unnecessary because:
  • The powers in s 30 of the Act were “ample to provide for the realisation of the divisible property of the bankrupt, be it real or equitable and whether jointly owned or not” (at [3], emphasis added).In support of this last proposition, reference was made to the Full Federal Court’s decision in Coshott v. Prentice  [2014] FCAFC 88, at [92]-[93] (“Coshott).
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