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Stillman v Pascoe [2010] FMCA 549 (28 July 2010)

Last Updated: 29 July 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STILLMAN v PASCOE

BANKRUPTCY – Bankrupt seeking to travel overseas for his son’s wedding – permission to travel denied by the Trustee – application for review – factors relevant to exercise of Court’s discretion – potential for improper use of monies properly belonging in the bankrupt estate – whether bankrupt has hampered administration of the bankrupt’s estate – whether travel will hamper administration of the bankrupt’s estate.

Bankruptcy Act 1966 (Cth), ss.5(1), 58(1)(a), 77(1)(g), 116(1), 133, 139P, 139Q, 139U, 139ZA, 178, 179, 272

Dunwoody v Official Receiver [2005] FMCA 1634
Healy v Prentice (No. 2) [2000] FCA 1598
Khan v Melluish [2010] FMCA 119
Lockwood v Vince [2007] FMCA 1497
Maxwell-Smith v Donnelly (2007) 5 ABC(NS) 232; [2007] FCA 894
O’Brien v Sheahan [2002] FCA 1292
Re Hicks; Ex parte Lamb [1994] FCA 1473; (1994) 217 ALR 195
Re Tyndall, Ex parte Official Receiver [1977] FCA 15; (1977) 17 ALR 182

Applicant:
TREVOR JAMES STILLMAN

Respondent:
SCOTT PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF TREVOR JAMES STILLMAN

File Number:
PEG 111 of 2010

Judgment of:
Lucev FM

Hearing date:
20 July 2010

Date of Last Submission:
20 July 2010

Delivered at:
Perth

Delivered on:
28 July 2010

REPRESENTATION

Counsel for the Applicant:
Mr K Savas

Solicitors for the Applicant:
Corser & Corser Lawyers

Counsel for the Respondent:
Mr C Donoghue

Solicitors for the Respondent:
Carles Solicitors

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 111 of 2010

TREVOR JAMES STILLMAN

Applicant


And


SCOTT PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF TREVOR JAMES STILLMAN

Respondent


REASONS FOR JUDGMENT

Mr Stillman applies to travel to the United States of America

  1. On 10 June 2010 the bankrupt, Mr Trevor James Stillman,[1] wrote to his trustee in bankruptcy[2] requesting that the Trustee consent to Mr Stillman leaving Australia, ostensibly for the purpose of attending his son’s wedding in Las Vegas in the United States of America[3] on 4 August 2010. The requested length of the absence from Australia was from 31 July 2010 to 14 August 2010.[4]
  2. Mr Stillman asserts that the administration of his bankrupt estate is being dealt with according to law and that his absence will not affect the administration of the bankrupt estate. Further, he does not believe that his absence from Australia for a short period of two weeks will hamper or adversely affect the administration of his bankrupt estate.[5]

The Trustee responds to the travel application

  1. On 25 June 2010 the Trustee’s solicitors wrote to Mr Stillman’s solicitors responding to his application to travel to the USA, and advising as follows:
  2. It appears that Mr Stillman did not respond to the Trustee’s Response.[7]

The bankrupt makes an application to the Court

  1. Mr Stillman’s next step following the Trustee’s Response was to make an application to this Court under s.178 of the Bankruptcy Act 1966 (Cth).[8] But it was not until 8 July 2010 that Mr Stillman applied for orders that:
On the grounds stated in the supporting affidavit the Applicant seeks the following orders pursuant to s178 Bankruptcy Act 1966:
  1. Section 178 of the Bankruptcy Act provides as follows:
  2. The application was listed urgently for hearing on 12 July 2010, but on that day Mr Stillman consented to orders adjourning the hearing until 20 July 2010 and allowing the Trustee to file further material.
  3. The Trustee subsequently filed a Notice Stating Grounds of Opposition to Application setting out the following grounds:
  4. The Trustee also filed an affidavit in support of the Notice of Opposition.[10]

Legal principles – generally

  1. It has been said that the following issues, whilst not necessarily conclusive, ought to be at the forefront of any consideration of the exercise of the Court’s discretion to review the exercise of the Trustee’s discretion to refuse to allow a bankrupt to travel:
    1. whether the proposed visit is genuine;
    2. whether the bankrupt is likely to return to Australia as promised; and
    1. whether the visit will hamper the administration of the bankrupt’s estate.[11]
  2. In this matter the only contested, and key, issue is whether the proposed visit to the USA by Mr Stillman will hamper the administration of the bankrupt estate.

Legal principles – hampering the administration of the bankrupt’s estate

  1. It is a serious decision for a Court to interfere with the Trustee’s discretion, and the Court ought only to do so if Mr Stillman satisfies it that the Trustee’s conduct was incorrect, or other conduct would be preferable, and that justice and equity require the Court to intervene.[12]
  2. The Court must consider all relevant circumstances associated with the bankruptcy, including:
    1. the opinion of the Trustee as to what is in the interests of the prompt and efficient administration of Mr Stillman’s bankrupt estate;[13]
    2. matters of “fundamental importance” relating not only to the circumstances of the bankruptcy, but also the freedom of the citizen, who is neither a criminal nor under criminal restraint, to travel to pursue a legitimate purpose, in this case, Mr Stillman’s son’s wedding;[14]
    1. whether there are any specific events requiring Mr Stillman’s personal presence in the jurisdiction for the purposes of the administration of the bankrupt’s estate;[15] and
    1. whether Mr Stillman might deal with money which might be that of his bankrupt estate, either for the purposes of the travel to the USA or whilst in the USA.[16]
  3. Any restriction imposed on Mr Stillman must be seen as being aimed at ensuring the proper administration of the bankrupt estate,[17] and overseas travel may be subordinated to that which is necessary for the proper and efficient administration of the bankrupt estate and of bankruptcy law.[18] However, the mere status of bankruptcy is not to be used to penalise Mr Stillman.[19] If Mr Stillman is in default of any of his obligations, denial of permission to travel, or conditional permission to travel, may be appropriate as a means to encourage compliance with his obligations.[20]
  4. Mr Stillman bears the onus in these proceedings to establish that the Court ought to interfere with the Trustee’s discretion, and that the concerns of the Trustee related to the alleged hampering of the administration of Mr Stillman’s bankrupt estate are either not issues:
    1. at all; or
    2. which hamper the administration of the bankrupt estate to the extent that warrants a restriction of Mr Stillman’s travel for the purposes of his son’s wedding.

It must be borne in mind that there is no issue as to the genuineness of the proposed visit or the likelihood that Mr Stillman would return to Australia as promised, which were also factors to be weighed in the balance by the Trustee, and by the Court on review.[21]

The issues arising from the Trustee’s Response

  1. Three issues arise from the Trustee’s Response and the Notice of Opposition as the basis for the Trustee not acceding to Mr Stillman’s request to travel to the USA. They are:
    1. non-compliance with the Section 77 Notice;
    2. failure to provide income information under s.139U of the Bankruptcy Act, and the consequent emergence of contribution liabilities; and
    1. failure to comply with the Trustee’s demand to repay rental monies.
  2. Each of the above matters is dealt with below.

Section 77 Notice

  1. Section 77 of the Bankruptcy Act provides as follows:
  2. The Section 77 Notice was issued to Mr Stillman on 30 October 2009 by the Trustee, under cover of a letter of the same date.[22] The terms of the Section 77 Notice provide as follows:
  3. Mr Stillman submits that the requirements of the Section 77 Notice have been fully complied with, as follows:
    1. his affidavit dated 10 December 2009 filed in support of his application made the same day for orders under s.179 of the Bankruptcy Act,[25] substantively satisfies the requirements of the Section 77 Notice, and is a matter of which the Trustee has notice, it being the respondent to the Section 179 Application;[26] and
    2. by attaching a copy of his current employment contract in satisfaction of paragraph 3 of the Section 77 Notice.[27]
  4. The Section 77 Notice followed an earlier letter from the Trustee to Mr Stillman’s solicitors dated 2 March 2009.[28]
  5. In the Trustee’s March 2009 Letter the Trustee dealt with the workers compensation issues subsequently referred to in the Section 77 Notice as follows:
  6. The evidence establishes that Mr Stillman provided the following information:
    1. that referred to in paragraphs 1 and 2 of the Section 77 Notice concerning his workers compensation payment details, but only provided as part of his Section 179 Affidavit in support of his Section 179 Application for an inquiry into the Trustee’s conduct; and
    2. part of a copy of an employment contract in Mr Stillman’s Affidavit in support of this application, but omitting Schedule 1 of the employment contract which contained the relevant remuneration package details.[30]
  7. The documentation required at paragraphs 6 and 7 of the Section 77 Notice has not been provided.[31] Counsel for Mr Stillman conceded that this was the case at the hearing, and no explanation has been provided as to why that documentation has not been provided.[32]
  8. It is evident from the matters set out above that Mr Stillman has not fully complied with the requirements of the Section 77 Notice. To the extent that he has complied with respect to the employment contract, it is only partial compliance, including details of the precise nature of the remuneration, and the employment arrangements, which are described in the employment contract as “relief” and “casual” but not otherwise elaborated upon as is required by the Section 77 Notice which seeks details of the “terms of employment”. The most important information in relation to the employment contract has not been supplied. Those gaps are not filled by the supply of a summary of PAYG payments made to Mr Stillman which indicates little more than that his income for the year ending 30 June 2009 was $55,200 and tax withheld was $15,438.[33]
  9. The Court specifically notes that:
    1. Mr Stillman took more than eight months to provide the requested workers compensation details from the time of the request in the Trustee’s March 2009 Letter, and then did not do so directly in response to the Section 77 Notice, and only did so in the Section 179 Affidavit, supporting his Section 179 Application for an inquiry into the Trustee’s conduct;
    2. the incomplete employment contract details were not provided for over eight months, and again were then only provided by way of Mr Stillman’s Affidavit in support of this application; and
    1. that no information has been provided in relation to:
      1. the two deposits, one in each of July 2008 and September 2009, totalling $9,824.05; and
      2. the two withdrawals, one in each of December 2008 and January 2009 totalling $24,020.00.
  10. Section 77(1)(g) requires Mr Stillman to aid to the utmost of his power the administration of the bankrupt estate by fully complying with the Trustee’s requests for information. It is apparent that Mr Stillman has not done so, and continues not to do so, in relation to the requirements of the Section 77 Notice.

Income information

  1. Section 272 of the Bankruptcy Act provides as follows:
  2. Sections 139P, 139Q and 139U of the Bankruptcy Act provide as follows:
  3. In the Trustee’s October 2009 Letter the Trustee reminded Mr Stillman’s solicitors of Mr Stillman’s obligations under s.139U of the Bankruptcy Act to provide evidence of his income for the contribution assessment period 8 July 2008 to 7 July 2009.[34] Relevantly, the Trustee wrote as follows:
  4. With respect to the request to provide information regarding his income made under s.139U of the Bankruptcy Act Mr Stillman says:
    1. matters relevant to that request can be found in the contents of the Section 179 Application and Mr Stillman’s Section 179 Affidavit;
    2. he provided a copy of his Group Certificate for the year ending 30 June 2009 to supplement disclosures he says he has already made in satisfaction of s.139U of the Bankruptcy Act;[36] and
    1. he has not yet received his Group Certificate for the year ended 30 June 2010 but that he will provide it in due course.
  5. In Mr Stillman’s Affidavit in support of this application he has annexed a PAYG payment summary page showing gross payment amount ($55,200) and tax withheld amount ($15,438) for the financial year ended 30 June 2009. That was originally furnished to the Trustee under cover of an unsworn affidavit by Mr Stillman dated 2 July 2010 in support of this application. Thus, more than eight months passed before Mr Stillman provided basic but essential information concerning the requirements under s.139U, and then only did so to assist with this application with respect to his proposed travel to the USA, and in such a way as to provide a minimal amount of information. The provision of a minimal amount of information by way of one page of a PAYG payment summary page is compounded by:
    1. the employment contract details provided not being complete, for reasons set out above;[37] and
    2. other particulars, and information (for example, payslips or other documents evidencing salary or wages) not being provided.[38]
  6. Following the provision of the PAYG payment summary page and incomplete employment contract the Trustee, on 9 July 2010, issued:
    1. an assessment notice for the CAP 1 period resulting in a contribution liability of $10,729.83 payable on 23 July 2010;[39]
    2. an assessment notice for the contribution assessment period 8 July 2009 to 7 July 2010[40] resulting in a contribution liability of $11,155.20 payable on 23 July 2010.[41]

The Trustee had been unable to issue these assessment notices prior to the provision of the limited information provided by Mr Stillman, as set out in the preceding paragraph.[42]

  1. There is no evidence that payment has been made with respect to either contribution liability, or that there has been an application for review made to the Inspector-General of Bankruptcy.[43]
  2. To date, Mr Stillman has not provided the following information requested by the Trustee under s.139U of the Bankruptcy Act:
    1. a statement setting out particulars of all income that was derived during CAP 1;
    2. a statement indicating what income Mr Stillman expected to derive during CAP 2; and
    1. books, including but not limited to income tax returns, payslips and notices of assessment.[44]
  3. The Trustee submits that, under s.272(2) of the Bankruptcy Act, written conditions may be imposed by the Trustee on a consent given for the purpose of allowing a bankrupt to travel outside Australia. The Trustee says that because Mr Stillman is liable to make a contribution to the Trustee under s.139P of the Bankruptcy Act the Trustee may exercise the discretion to include conditions regarding the payment of that contribution, and that was what was done in the Trustee’s Response. The Trustee submits that consent for Mr Stillman to travel to the USA has been withheld until the issues outlined in the Trustee’s Response are addressed.[45] The Trustee says:
    1. he has a “general policy” to “withhold consent” where there are “outstanding issues” with the administration of the bankruptcy; and
    2. his “position” was “that he is not prepared to accede” to Mr Stillman’s travel request in the prevailing circumstances.[46]
  4. The Trustee is entitled to place conditions upon Mr Stillman’s travel outside Australia. Mr Stillman has failed to cooperate, by not providing income information to the fullest extent possible, with the Trustee. The Trustee has nevertheless determined contribution assessment amounts for CAP 1 and CAP 2. Although those contribution assessment amounts have only been recently determined and notified, it is particularly the case with respect to CAP 1, that it was not possible to determine them in a timely fashion because Mr Stillman delayed in providing information that he was obliged to provide, and then only provided information because it suited his circumstances. Mr Stillman then did so in a minimal fashion, and not in accordance with what was requested by the Trustee. Having regard to Mr Stillman’s failure to have provided the information requested under s.139U of the Bankruptcy Act by the time of the Trustee’s Response, and subsequently, it cannot be said that Mr Stillman has, as required by s.77(1)(g) of the Bankruptcy Act, aided to the utmost of his power, the administration of the bankrupt estate.

Rental monies

  1. With respect to the repayment of rental monies received, Mr Stillman says that:
    1. he has sufficiently responded to the Trustee in letters dated 16 March 2009 and 20 October 2009;[47] and
    2. the information regarding rental monies received by him was properly dealt with in the 16 March 2009 and 20 October 2009 letters which were included in his original bankruptcy application and were at all times known to the Trustee.[48]
  2. At the time he became bankrupt Mr Stillman was the registered proprietor of property in South Boulder.[49] On 13 March 2009 the Trustee sent a letter of demand to Mr Stillman:
    1. advising that the South Boulder Property vested in the Trustee as at the date of bankruptcy, being 8 July 2008, under s.58 of the Bankruptcy Act; and
    2. seeking that Mr Stillman forward to the Trustee a cheque in the amount of $32,631.42 for rental monies received from the South Boulder Property after Mr Stillman became bankrupt.[50]
  3. Mr Stillman alleged that the Official Trustee (who was Mr Stillman’s first trustee) had approved rental monies from the South Boulder Property continuing to be paid to him.[51] The Trustee made inquiries and in the Trustee’s March 2009 Letter advised Mr Stillman’s solicitors that:
    1. the Trustee could find no evidence that such an approval had been granted by the Official Trustee; and
    2. in any event, by reason of ss.58(1)(a) and 116(1), and the definition of “property” in s.5(1) of the Bankruptcy Act, Mr Stillman was never entitled to receive the rental monies.[52]

Subsequently, the Trustee issued a Notice of Demand for the rental monies in the amount of $32,631.42 on 6 April 2009.[53]

  1. On 27 January 2010 the Trustee again wrote to Mr Stillman and told him that there was no evidence to substantiate the allegation that the Official Trustee had disclaimed the right to the rental monies. It is common ground that the rental monies have not been paid to the Trustee. Mr Stillman has not produced any evidence to substantiate the allegation that the Official Trustee disclaimed the right to the rental monies.[54]
  2. Section 58(1) of the Bankruptcy Act provides as follows:
  3. Section 116(1) of the Bankruptcy Act provides as follows:
  4. The term “property” is defined in s.5 of the Bankruptcy Act as follows:
  5. Section 133(1)-(3) and (6) of the Bankruptcy Act provides as follows:
  6. The South Boulder Property vested in the Official Trustee at the time Mr Stillman became bankrupt.[55] There is no evidence that the Official Trustee, or the Trustee, have disclaimed the South Boulder Property or any of the rental monies,[56] or that Mr Stillman was both allowed and encouraged to treat the rental monies as his own.[57] It follows that the rental monies received in relation to the South Boulder Property after Mr Stillman became bankrupt belong to the Trustee on behalf of Mr Stillman’s bankrupt estate.[58]
  7. In the absence of evidence that the Official Trustee disclaimed any right to the rental monies, the Court is of the view that the rental monies belong to the Trustee. As the situation presently stands, Mr Stillman, a bankrupt, has the benefit of those funds which ought be available for the benefit of creditors, and which arguably may be lost if any or all of those funds were somehow to be applied towards travel, holiday and entertainment expenses if Mr Stillman travels to the USA.[59]
  8. The situation is further compounded by the fact that no evidence has been led in these proceedings as to how Mr Stillman, or other members of the Stillman family who are travelling to the USA, are funding airfares, accommodation and their holiday expenses. In short, Mr Stillman has failed to satisfy the Court, by way of evidence, that rental monies might not be used to pay for flights, accommodation and holiday expenses. Further, it must also be noted that Mr Stillman has failed to explain the withdrawal of $24,020.00 in December 2008 and January 2009 from his bank account. In those circumstances, it cannot be said that Mr Stillman has co-operated with the Trustee in the manner contemplated by s.77(1)(g) of the Bankruptcy Act.

Consideration

  1. Mr Stillman has:
    1. provided some documents as requested;
    2. failed to provide some documents requested by the Trustee;
    1. provided some documents only after a very considerable delay;
    1. provided some documents only in connection with applications made by him to this Court seeking orders in his favour; and
    2. generally, delayed and obstructed the Trustee in relation to the provision of documents required for the administration of his bankrupt estate.
  2. There is no evidence that any of the documents requested by the Trustee are particularly difficult to provide, and, indeed, many ought not be (for example: payslips). Yet they have not been provided, or they have only been provided after long delays, and sometimes only for the purpose of seeking favourable orders from the Court. In fact, the documents provided to this Court might arguably be said not to have been properly provided to the Trustee in any event.
  3. In these circumstances, can it be said that the Trustee’s discretion miscarried when the Trustee told Mr Stillman that he must first deal with the issues set out in the Trustee’s Response before the Trustee would grant approval for Mr Stillman to travel to his son’s wedding? Further, and in any event, would it be just and equitable for the Court to grant orders which would or might have the effect of allowing Mr Stillman to travel to his son’s wedding in the USA?
  4. The Court must determine whether the Trustee improperly exercised his discretion by not allowing Mr Stillman to travel to the USA, and whether it ought to interfere with the exercise of the Trustee’s discretion.
  5. No one can or should doubt:
    1. the importance of a father attending his son’s wedding; or
    2. that a citizen should, generally, be free to travel.
  6. Mr Stillman is, however, a citizen who is bankrupt and who has:
    1. failed to co-operate with the Trustee in the administration of the bankrupt estate, not just in minor matters, but in major matters, and on an ongoing basis;
    2. by his actions, hampered the administration of his bankrupt estate, and who by his ongoing actions continues to do so; and
    1. failed to explain how his flights to, and accommodation and expenses in, the USA are being funded, leaving open the possibility that the rental monies, or other monies withdrawn from his bank account, which are monies which should have been sequestered for the benefit of creditors, or monies now payable to the Trustee as contribution liabilities, might be used, or might have been used, for personal purposes.
  7. In short, there has been significant non-compliance by Mr Stillman with his obligations as a bankrupt, and there is a risk of further non-compliance.
  8. In the circumstances the Court is of the view that the Trustee’s discretion has not been improperly exercised.
  9. The Court has, in any event, given anxious consideration as to whether it might, in any event, consider it just and equitable to make an order, in reviewing the exercise of the Trustee’s discretion, which allows Mr Stillman to travel to the USA.
  10. The Court does not consider it just to make an order which would have the effect of allowing Mr Stillman to travel, where there is a risk that the rental monies which ought properly be brought within Mr Stillman’s bankrupt estate, remain outside that estate, and available to him to dissipate. Likewise, with respect to the now outstanding contribution liabilities. This is so especially where there has been no preparedness by Mr Stillman to offer, or agree to, have the monies put in trust, or even to give some form of undertaking as to their use.[60] This, in the Court’s view, demonstrates that the travel may well hamper the administration of Mr Stillman’s bankrupt estate.
  11. The Court also does not consider it equitable to make an order which would have the effect of allowing Mr Stillman to travel, because in the administration of the bankrupt estate he has acted with impropriety towards the Trustee in relation to his obligations as a bankrupt to assist the Trustee.
  12. For all of the above reasons there will be an order dismissing the application.
  13. The Court notes that it is still open to the Trustee to approve Mr Stillman’s travel, and particularly so if Mr Stillman deals with the issues in the Trustee’s Response, or otherwise adopts an approach in which he can be seen to be co-operating with the Trustee and not hampering the administration of his bankrupt estate. In the event that Mr Stillman does otherwise adopt an approach in which it can be argued that he is co-operating with the Trustee and not hampering the administration of his bankrupt estate, it is open to him to:
    1. renew his application to the Trustee for approval to travel to the USA; and
    2. in the event that a renewed application is refused, make a further application to this Court if he considers that appropriate grounds exist to do so.

Conclusion

  1. The Court has concluded that the Trustee’s refusal to allow Mr Stillman to travel to the USA was not a miscarriage of the Trustee’s discretion, and, in any event, it would not be just and equitable to make an order which would have the effect of allowing Mr Stillman to travel to the USA. Therefore the application will be dismissed.
  2. The Court will hear the parties as to costs.

I certify that the preceding 63Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-threesixty-three (63) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate:


Date: 28 July 2010

[1] “Mr Stillman”.
[2] “the Trustee”.
[3] “USA”.
[4] Affidavit of Trevor James Stillman sworn 9 July 2010, para.3 and Annexure TJS 1 (“Mr Stillman’s Affidavit”).
[5] Mr Stillman’s Affidavit, paras.10 and 11.
[6] Mr Stillman’s Affidavit, Annexure TJS 2 (“Trustee’s Response”).
[7] Mr Stillman’s Affidavit, paras.5-11.
[8] “Bankruptcy Act”.
[9] “Notice of Opposition”.
[10] Affidavit of Andrew John Scott sworn 16 July 2010 (“Mr Scott’s Affidavit”).
[11] Re Hicks; Ex parte Lamb [1994] FCA 1473; (1994) 217 ALR 195 at 198 per Heerey J (“Hicks”).
[12] Healy v Prentice (No. 2) [2000] FCA 1598 at para.21 per Madgwick J.
[13] Re Tyndall, Ex parte Official Receiver [1977] FCA 15; (1977) 17 ALR 182 at 186 per Deane J (“Tyndall”).
[14] Tyndall at 187 per Deane J.
[15] Hicks at 198 per Heerey J.
[16] See Khan v Melluish [2010] FMCA 119 at paras.5, 30, 32, 34, 36 and 47 per Barnes FM (“Khan”).
[17] Tyndall at 190-191 per Deane J.
[18] Tyndall at 191 per Deane J.
[19] Maxwell-Smith v Donnelly (2007) 5 ABC(NS) 232 at 235 and 247 per Allsop J; [2007] FCA 894 at paras.7 and 44 per Allsop J (citing Tyndall) (“Maxwell-Smith”); Dunwoody v Official Receiver [2005] FMCA 1634 at para.29 per Riethmuller FM (“Dunwoody”).
[20] Dunwoody at para.29 per Riethmuller FM.
[21] Khan at para.38 per Barnes FM.
[22] Mr Scott’s Affidavit, paras.5 and 11 and Annexure A (“Trustee’s October 2009 Letter”).
[23] The year in the above four sub-paragraphs is presumably a mistake, and is presumably intended to be 2008.
[24] Mr Scott’s Affidavit, para.5 and Annexure A.
[25] “Section 179 Application”.
[26] Mr Stillman’s Affidavit, para.6(a) and Annexure TJS 3 (being a copy of the affidavit attached to the Section 179 Application, an affidavit sworn by Mr Stillman on 23 November 2009 (“Mr Stillman’s Section 179 Affidavit”).
[27] Mr Stillman’s Affidavit, para.6(b) and Annexure TJS 4.
[28] Mr Scott’s Affidavit, para.6 and Annexure A (“Trustee’s March 2009 Letter”).
[29] Trustee’s March 2009 Letter, point 5.
[30] Mr Stillman’s Affidavit, para.6(b) and Annexure TJS 4.
[31] Mr Scott’s Affidavit, paras.9 and 10.
[32] Transcript, page 7.
[33] Mr Stillman’s Affidavit, para.7(b) and Annexure TJS 5.
[34] “CAP 1”.
[35] Mr Scott’s Affidavit, para.11 and Annexure A.
[36] Mr Stillman’s Affidavit, para.7(b) and Annexure TJS 5.
[37] See paras. 23(b) and 25 above.
[38] Bankruptcy Act, ss.77(1)(g) and 139U(1)(a)(i), (2) and (3)(a).
[39] Mr Scott’s Affidavit, para.13 and Annexure B.
[40] “CAP 2”.
[41] Mr Scott’s Affidavit, para.14 and Annexure C.
[42] Mr Scott’s Affidavit, para.13.
[43] Bankruptcy Act, s.139ZA.
[44] Mr Scott’s Affidavit, para.12.
[45] Notice of Opposition, ground 1; Transcript, pages 13-14.
[46] Trustee’s Response.
[47] Mr Stillman’s Affidavit, para.8(a) and Annexure TJS 6.
[48] Mr Stillman’s Affidavit, para.8(b) and Annexure TJS 7.
[49] “South Boulder Property”.
[50] Mr Scott’s Affidavit, para.18 and Annexure A.
[51] Mr Scott’s Affidavit, Annexure A, in a letter dated 16 March 2009 from Mr Stillman’s solicitors to the Trustee.
[52] Mr Scott’s Affidavit, para.18 and Annexure A.
[53] Mr Scott’s Affidavit, para.17 and Annexure A.
[54] Mr Scott’s Affidavit, para.19 and Annexure A.
[55] Bankruptcy Act, s.58(1).
[56] Bankruptcy Act, s.133(1), (1A), (3) and (6).
[57] Contrast O’Brien v Sheahan [2002] FCA 1292 at paras.49-67 per Carr J where the Trustee allowed and even encouraged the bankrupt to build up equity in the bankrupt’s family home (which the bankrupt did by continuing to pay off the mortgage), resulting in an estoppel when the Trustee, several years later, sought to sell the home.
[58] Bankruptcy Act, s.116(1).
[59] See para.13(d) above and footnote therein.
[60] Contrast, for example, Lockwood v Vince [2007] FMCA 1497 at para.15 per Riley FM where there was a preparedness by the applicant to pay the contribution liability in to trust.

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