Case: Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246
Outcome: cited
The applicant's application was heard on 8 April 1997 and was opposed by the respondent. On 11 April 1997 Lee J delivered his judgment ( Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246) and ordered that: '...the period of bankruptcy limited by s149 of the Act be abridged from 3 years to 1 year and 1 month from the date of filing of the statement of affairs. As a result, [the applicant] will be discharged from bankruptcy as at 22 February 1995.' 26 Lee J accepted that the date on which the statement of affairs had been filed with the Registrar in Bankruptcy was 21 January 1994. 27 The applicant was legally represented before Lee J. The case advanced by the applicant was that the applicant had provided to the trustee a statement of his affairs in July 1991 as part of the proposed Pt X composition, and in September 1991 as part of the debtor's petition, and that the respondent was therefore not prejudiced by the applicant's failure to provide a statement of affairs earlier than, on the applicant's version, 6 April 1993, or on the respondent's version, shortly before 21 January 1994. The applicant submitted that as the respondent had access to the July 1991 and September 1991 statements of affairs, he had sufficient information about the applicant's affairs to conduct the bankruptcy. No case was advanced on behalf of the applicant that the applicant had provided the trustee with a statement of affairs on 7 October 1991. 28 In his reasons, after reviewing the evidence, Lee J said at 4-5: 'On 6 October 1992 the Trustee advised Mr Macchia that he had not received a copy of Mr Macchia's statement of affairs as required by s 54 of the Act and informed Mr Macchia that pursuant to s 149 of the Act discharge from bankruptcy would not occur until 3 years from the filing of the statement of affairs. On 9 October 1992 Mr Macchia replied to the Trustee that he had provided a statement of affairs on 16 July 1991 and again on 4 September 1991 and asked that the Trustee obtain a copy of the statements from the Registrar as soon as possible. In a letter to the Trustee dated 23 October 1992 Mr Macchia again referred to his debtor's petition and the statement of affairs and that he had "lodged" with that petition... By letter dated 28 October 1992 the Trustee informed Mr Macchia that he had been made bankrupt on a creditor's petition...and not on the debtor's petition with which the statement of affairs had been supplied. The Trustee asked Mr Macchia to file a statement of affairs. On 3 December 1993 the Trustee applied to the Court for an order that Mr Macchia be committed for contempt pursuant to sub-s 54(3) of the Act for failure to file a statement of affairs as required by paragraph 54(1)(a). Before the application came on for hearing Mr Macchia filed a statement of affairs on 21 January 1994. Pursuant to s149 of the Act discharge from bankruptcy will occur on 22 January 1997 if the period of bankruptcy were not extended by an objection lodged by the Trustee.' 29 At 9-10 of his reasons, Lee J said: 'In the present case the bankrupt has been the author of his own misfortune in that he continued to maintain, in the face of the Trustee's advice that he was obliged to file a further statement of affairs, that he had complied with the requirements of the Act when he presented his own petition and by declining to comply with the Trustee's request that he do so.' 30 Apart from the statement of affairs, which was filed with the Registrar in Bankruptcy on 21 January 1994, Lee J referred in his judgment only to two statements of affairs, made by the applicant, namely, the statement of affairs of 16 July 1991 (provided as part of the attempts to reach a composition under Pt X) , and the statement of affairs of 4 September 1991 (provided with the debtor's petition). His Honour made the orders abridging the time relying upon the provisions of s 33(1)(c) of the Act and the case of Re; Rohde (1993) 42 FCR 149 ('Rohde') . 31 Before Lee J the applicant argued that there had in fact been compliance with s 54(1) of the Act in that the statement of affairs had been filed with the Registrar in Bankruptcy as part of the debtor's petition on 4 September 1991, being a date within 14 days of the sequestration order, albeit before the date of the sequestration order. Lee J rejected that argument, holding that on a proper construction, s 54(1) of the Act required that the statement of affairs be filed within 14 days after the date of the making of the sequestration order, and not 14 days before the making of that order. 32 The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act. 34 It is plain from the judgment that the reference to 'one or other of the statement of affairs' is a reference to the two statements of affairs which had been referred to by Lee J in his judgment, namely, the statement of affairs which was prepared and filed as part of the Pt X proceedings and the second statement of affairs which accompanied the debtor's petition presented to the Registrar in Bankruptcy by the applicant. 35 There is no reference in either of the decisions of Lee J or the Full Court referred to above, to any claim or argument being advanced by the applicant on the basis that he made and supplied the respondent with a statement of affairs on 7 October 1991. 36 After the Full Court decision in 1997, the applicant in March 1999 applied for and was given leave to file a further amended application. The application was heard on 12 October 1999. At that time, there were in existence further objections by the respondent to the discharge of the applicant from bankruptcy. The hearing was adjourned part heard. However, on 17 December 1999, and before the hearing of the application was resumed the respondent withdrew his objections to the applicant's discharge from bankruptcy. The withdrawal of the objections meant that the applicant was discharged from bankruptcy pursuant to s 149 of the Act with effect from 22 January 1997 - that being three years from the filing of the statement of affairs with the Registrar in Bankruptcy. However, as at 17 December 1999, the applicant had been treated as an undischarged bankrupt for almost three years beyond the date on which the bankruptcy terminated under the Act. 37 Thus, by the time the application came on for the resumed hearing before Lee J on 23 February 2000 the applicant had been discharged from his bankruptcy. At the resumed hearing the applicant further amended the application. In that amended application, the applicant relied upon s 30(1)(b) and s 306 of the Act to seek a declaration that a 'proceeding' under the Act had not been invalidated by a formal defect or irregularity. The 'proceeding' which the applicant sought to be validated was the statement of affairs prepared in relation to the Pt X proceedings, or alternatively the statement of affairs dated 4 September 1991 accompanying the debtor's petition. The declaration he sought was that either of those statements of affairs be deemed to have been filed in the office of the Registrar in Bankruptcy on 17 September 1991.