Case: Re Bilen; Ex Parte Sistrom [1985] FCA 141
Outcome: referred to
By an application filed 16 November 2005 in the Federal Magistrates Court of Australia ('the Federal Magistrates Court') the respondent sought relief pursuant to s 30(1)(b) of the Act in respect of the realisation of the property and the disposition of the proceeds of any sale. In Re Bilen; Ex Parte Sistrom [1985] FCA 141 Neaves J at [8] said in relation to an application by the trustee of a bankrupt seeking declarations as to the beneficial ownership of land registered in the names of a bankrupt and his wife as joint tenants and in respect of the disposition of the bankrupt's undivided half share: 'In my opinion s 30(1) of the Bankruptcy Act 1966 is not a provision limiting the Court's jurisdiction. It is a facultative provision giving the Court full power, within the limits of its jurisdiction to be found elsewhere, to make such orders as it considers should be made in order to carry out and give effect to the Act. The words used are not words of limitation but of extension.' 8 Later his Honour said at [17]: '... this Court is not restricted in considering what orders it would be appropriate to make in exercise of the power conferred on it by s 30(1) of the Bankruptcy Act 1966 by the kinds of limitations which may be found in the Partition Act, 1900 (NSW)' [see also s 66G of the Conveyancing Act 1919 (NSW)] 9 The respondent's application came before the learned Federal Magistrate on 6 December 2005, 17 January and 16 February 2006. 10 On 6 December 2005 the Federal Magistrate ordered the appellant to file and serve a Notice of Appearance by 7 December 2005, but this did not occur. However, at about 4.01 pm on 7 December 2005 Mr Thanh Tung Vo, a solicitor in the firm known as Australasia Legal &amp; Migration Services, Solicitors attempted to file a Notice of Appearance dated 7 December 2005 by forwarding same by facsimile to facsimile number 9230 8535, which he believed to be the facsimile number for the Federal Magistrates Court. Whether this Notice of Appearance reached the Court or not is uncertain. It certainly did not reach the relevant Federal Magistrates Court file number SYG 3351 of 2005. The Federal Magistrate also ordered that the Respondent file and serve 'a Notice in accordance with Form 149 stating grounds of opposition and affidavit supporting grounds of opposition' by 22 December 2005. Once again, this did not occur. 11 Whilst a notice in accordance with Form 149 stating the appellant's grounds of opposition to the trustee's application was never filed, an attempt was made to prepare an affidavit for the appellant propounding that she had contributed $37,000 out of a total purchase price of $67,000 paid for the property, that the balance had been funded by an advance from Commonwealth Bank of Australia to the appellant and the bankrupt and that she had paid all the monies due under the mortgage. Page 1 of the affidavit suggests that it was sworn on 15 December 2005. This is patently incorrect, but I am satisfied that no deception of the Federal Magistrates Court was intended. Each of the annexure notes in respect of annexures 'A', 'B' and 'C' to the affidavit indicate that it was in fact sworn on 15 February 2006. Mr Vo's evidence is that he was responsible for the insertion of the date 15 December 2005 which was the date when he set about drafting the affidavit. Due to inadvertence on his behalf he failed to cause the correct date to be inserted on page 1 of the affidavit when it came to be sworn on 15 February 2006 in its final form. No attempt was ever made by the appellant to file the affidavit and it was never read. However, on 16 February 2006 it was handed up to the Federal Magistrate. It was not formally tendered but it seems clear to me that it was intended by Mr Vo that it should become an exhibit on the hearing of an application made by him orally on that day to which reference will be made hereafter. The affidavit included the following: '3. Although my husband and I were registered as proprietors of the Property as joint tenants, I in fact paid all the monies as necessary to purchase the Property in our joint names together with the monies advanced by the original mortgagee, the Commonwealth Bank of Australia (CBA). ... 6. Annexed and marked "B" is a copy of another payment made by me to my conveyancing solicitor, although the receipt was in joint names. 7. I made the mortgage payment from my monies solely. 8. My husband did not contribute any to the purchase or the mortgage repayment at any time. ... 13. I having made an informed decision, I oppose the sale of the Property which, is in fact mine and which is the only home of myself, my husband and my three children. ...'