Case: Trihakis v Official Receiver (Vic) [1999] FCA 1426
Outcome: applied
Lelleton nonetheless contends that he satisfied the requirements of s 54(1)(a) of the Act by posting the Statement of Affairs to the Registrar in Bankruptcy. He relied on the decision of Kenny J in Trihakis v Official Receiver (Vic) [1999] FCA 1426. Her Honour there held that a Statement of Affairs could be filed by posting a completed original statement to the Registrar. In that case a declaration of the kind presently sought was granted in circumstances in which her Honour was satisfied that a Statement of Affairs had been posted but, for some undisclosed reason, could not be found on the Registrar's file. I am satisfied, on the balance of probabilities, that Mr Lelleton posted his Statement of Affairs to the Registrar as he claims, on or about 19 April 1995. I am so satisfied for a number of reasons. Mr Lelleton has sworn that he posted the document. He retained a copy of it. The copied form appears in a format that was in use in 1995 but is not presently in use. It is dated April 1995. It is inherently unlikely that Mr Lelleton would have attempted to reconstruct such a form so long after the event. It is also inherently unlikely that, having gone to the trouble of completing a long form in a timely way, he would not have attempted to comply with the obligation which Mr White had brought to his attention by posting it from Sydney to the Registrar. At all relevant times s 149(4) of the Act provided: "(4) If the bankrupt becomes a bankrupt after the commencement of s 27 of the Bankruptcy Amendment Act 1991 , the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs." It is to be noted that the three year period runs from the date on which the Statement of Affairs was filed. It does not run from the date on which the Trustee is provided with a copy of the Statement. Mr Lelleton's failure to provide a copy of the Statement to Mr White in 1995 can, therefore, have no bearing on the determination of the date of his discharge from bankruptcy. The relevant date is the date of filing. In Trihakis , Kenny J fixed the date of filing as a day that was three days after the Statement of Affairs was signed in order to allow for any delay in posting and delivery. Given that the Statement in the present proceeding was despatched from Sydney on 19 April 1995, I consider that an allowance of two business days should be made such that the date of filing should be fixed, not as 19 April 1995 (the date of signing) but 21 April 1995. Discharge, by operation of s 149(4) of the Act would, therefore, have occurred on 21 April 1998. I note that Mr White's letter to Mr Lelleton is dated 7 April 1995. If an equivalent allowance of two days is made for it to have been received by Mr Lelleton, his Statement of Affairs was filed, as required by s 54(1)(a) of the Act, within 14 days from the date on which he was notified of his bankruptcy. Declarations, consistent with these findings, will be made. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 October 2009 Counsel for the Applicant: Mr L Watts Solicitor for the Applicant: Mr R Silverstein Date of Hearing: 12 October 2009 Date of Judgment: 12 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1165.html