Cole v Australian Financial Security Authority [2019] FCA 1676

Cole v Australian Financial Security Authority [2019] FCA 1676

Mr Cole's affidavit established that he believed on reasonable grounds that his statement of affairs had been filed in late September 2016 by returning a re-dated document by post to AFSA. There was no evidence that the failure to lodge a compliant statement had affected the administration of the bankruptcy, frustrated third-party inquiry, compromised information to trustees, or that the statement provided to trustees was otherwise deficient. The trustees raised no objection. It was therefore appropriate to order under s 33A that the statement of affairs be treated as filed on 10 November 2016, a date that would not result in automatic termination earlier than 30 days from the order.

Jurisdiction
Australia
Judgment Date
10 October 2019
Procedural Posture
Bankruptcy Application Under S 33 a of the Bankruptcy Act 1966 (cth) to Alter the Treated Filing Date of a Statement of Affairs / Reasons for Judgment and Orders After Hearing
Outcome
Order made under s 33A treating the statement of affairs as filed on 10 November 2016, with liberty to AFSA to apply on costs; the Court did not make the requested order directing AFSA to record a varied bankruptcy commencement date.
Legal Topics
['statement of Affairs' 'automatic Discharge From Bankruptcy' 'sequestration Order' 'reasonable Belief as to Filing' 'court Power Under S 33 A']
['bankruptcy' 'insolvency'] ['statement of Affairs' 'automatic Discharge From Bankruptcy' 'sequestration Order' 'reasonable Belief as to Filing' 'court Power Under S 33 A']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application Under S 33 a of the Bankruptcy Act 1966 (cth) to Alter the Treated Filing Date of a Statement of Affairs / Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether Mr Cole believed on reasonable grounds that his statement of affairs had been filed in late September 2016 before it was actually accepted for filing on 31 July 2019.' 'Whether the Court should order under s 33A of the Bankruptcy Act 1966 (Cth) that the statement of affairs be treated as filed before its actual filing date.' 'Whether the Court could make an order directing AFSA to record the date of commencement of bankruptcy as varied to a date determined by the Court.']

Ratio Decidendi

Mr Cole's affidavit established that he believed on reasonable grounds that his statement of affairs had been filed in late September 2016 by returning a re-dated document by post to AFSA. There was no evidence that the failure to lodge a compliant statement had affected the administration of the bankruptcy, frustrated third-party inquiry, compromised information to trustees, or that the statement provided to trustees was otherwise deficient. The trustees raised no objection. It was therefore appropriate to order under s 33A that the statement of affairs be treated as filed on 10 November 2016, a date that would not result in automatic termination earlier than 30 days from the order.

Court Disposition

Order made under s 33A treating the statement of affairs as filed on 10 November 2016, with liberty to AFSA to apply on costs; the Court did not make the requested order directing AFSA to record a varied bankruptcy commencement date.

Orders

  • ['Pursuant to s 33A of the Bankruptcy Act 1966 (Cth) the statement of affairs be treated as having been filed on 10 November 2016.' 'There be liberty to the first respondent to apply within 14 days for any orders in relation to costs.']