In the matter of Inspector-General in Bankruptcy [2002] FCA 59 (14 January 2002)

Last Updated: 8 February 2002

FEDERAL COURT OF AUSTRALIA

In the matter of Inspector-General in Bankruptcy [2002] FCA 59

BANKRUPTCY - trustees - registration of trustee - expiry of registration - application for renewal of registration after expiry date - trustee wrongly advised by the Insolvency and Trustee Services of Australia of expiry date - whether time for application for renewal should be extended - whether renewal should be backdated to date of expiry of registration

Hall v Inspector-General in Bankruptcy (Dowsett J, 16 October 1998, unreported) considered

Milner v Inspector-General in Bankuptcy (Dowsett J, 16 October 1998, unreported) considered

Cornell v Inspector-General in Bankruptcy [2000] FCA 1497 (2000) 105 FCR 146 considered

Re Inspector-General in Bankruptcy (North J, 5 July 1999, unreported) considered

Bankruptcy Act 1966 (Cth) s 155D

Bankruptcy Registration Charges Act 1997 (Cth) s 6

IN THE MATTER OF INSPECTOR-GENERAL IN BANKRUPTCY

V 7001 of 2002

GRAY J

14 JANUARY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7001 of 2002

IN THE MATTER OF the Inspector-General in Bankruptcy

EX PARTE:	INSPECTOR-GENERAL IN BANKRUPTCY APPLICANT
JUDGE:	GRAY J
DATE OF ORDER:	14 JANUARY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The time limited by s 155D(a) of the Bankruptcy Act 1966 for Robyn Lee Erskine to apply to the Inspector-General in Bankruptcy for an extension of her registration as a trustee be extended until 20 December 2001.

2. Upon the Inspector-General in Bankruptcy exercising the power to extend the registration of Robyn Lee Erskine, such registration be extended for a period of three years from 16 December 2001.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7001 of 2002

IN THE MATTER OF the Inspector-General in Bankruptcy

EX PARTE:

INSPECTOR-GENERAL IN BANKRUPTCY APPLICANT

JUDGE:	GRAY J
DATE:	14 JANUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application by the Inspector-General in Bankruptcy. It concerns the renewal of the registration of a registered trustee pursuant to the Bankruptcy Act 1966 (Cth) ("the Act"). Prior to 16 December 2001, Robyn Lee Erskine was a registered trustee pursuant to the Act. By s 155D of the Act, she was entitled to have her registration as a trustee extended for a period of three years from 16 December 2001 if she applied in writing to the Inspector-General for the extension, before the registration expired, and paid the charges imposed by s 6 of the Bankruptcy Registration Charges Act 1997 (Cth).

2 Ms Erskine did not apply in writing before the registration expired. She applied in writing and paid the necessary charge on 20 December 2001. As a consequence, the Inspector-General was unable to extend her registration for a further period of three years. The reason for the late application was simple. By letter dated 22 November 2001 from the Insolvency and Trustee Service Australia, Ms Erskine was informed that her registration as a Trustee in Bankruptcy was due to expire on 21 December 2001. She was advised, if she wished to extend her registration, to forward before that date a written application to the Inspector-General accompanied by the relevant fee. In due course, she complied with that letter.

3 The date of 21 December 2001 referred to in that letter was, of course, an error. It appears that it arose because of an administrative mistake within the Insolvency and Trustee Service Australia. The Inspector-General has therefore applied for the exercise of the power in s 33(1)(c) of the Act, to extend the time limited by s 155D. It appears that there is no difficulty in the Court extending the time limited by s 155D in the exercise of its power under s 33(1)(c). This was done by Dowsett J in Hall v Inspector-General in Bankruptcy (16 October 1998, unreported) at 2; again by Dowsett J in Milner v Inspector-General in Bankruptcy (16 October 1998, unreported); by Finkelstein J in Cornell v Inspector-General of Bankruptcy [2000] FCA 1497 (2000) 105 FCR 146 at [2]; and by North J in Re Inspector-General in Bankruptcy (5 July 1999, unreported). Because of the circumstances in which the error arose, there is every reason to grant the extension of time on the application of the Inspector-General.

4 An order is also sought in terms that upon the Inspector-General in Bankruptcy exercising the power conferred by s 155D of the Act to extend the registration of Ms Erskine, such registration be renewed for a period of three years effective from 16 December 2001. I had some concerns, not only as to whether such an order was necessary in the light of the terms of s 155D, but also whether the Court has the power to make an order in such terms. I note, however, that in each of Hall, Milner, Cornell and Re Inspector-General in Bankruptcy an order in those terms was made. A brief examination of the reasons for judgment of Dowsett J in Hall suggests that the reason for making such an order is to ensure continuity in the administration of the estates administered by the trustee, a matter which is of some concern and which perhaps ought to be settled. In the light of those authorities I am prepared to make such an order.

5 For these reasons then, the Court orders as follows:

1. That the time limited by s 155D(a) of the Bankruptcy Act 1966 for Robyn Lee Erskine to apply to the Inspector-General in Bankruptcy for an extension of her registration as a trustee be extended until 20 December 2001.

2. That upon the Inspector-General in Bankruptcy exercising the power to extend the registration of Robyn Lee Erskine, such registration be extended for a period of three years from 16 December 2001.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 6 February 2002

Counsel for the Applicant:	Mr P Frost
Solicitor for the Applicant:	Australian Government Solicitor
Date of Hearing:	14 January 2002
Date of Judgment:	14 January 2002