Perez and Inspector-General in Bankruptcy [2024] AATA 3277 

Background 

Mr Perez was declared bankrupt on 4 December 2019, with an automatic discharge scheduled for 5 December 2022. However, the trustee objected to the discharge because Mr Perez failed to comply with requests for information. The trustee sent letters on 1 December 2021 and 24 January 2022, requesting income details and outlining the consequences of non-compliance. Mr Perez did not respond, leading the trustee to file an objection on 23 November 2022, extending the bankruptcy by five years. 

Mr Perez challenged this in these proceedings, arguing he never received the letters and was blindsided by the decision. He later complied with the information requests and sought a review before the Tribunal, arguing he had a reasonable excuse for not responding.  

Expert evidence 

Mr Perez presented evidence from an IT “expert”, Mr AS, claiming the emails were never received and argued that the absence of a “read receipt” invalidated the Inspector-General’s stance. Despite compliance, the Inspector-General upheld the objection, stating a “special ground” existed and that Mr Perez lacked a reasonable excuse. 

The matter proceeded through case management and a review hearing occurred on 7 August 2024, where Mr Perez gave sworn evidence supported by exhibits, including emails and expert opinions. 

Mr AS wrote an undated letter to the Tribunal, where he provided the following opinion: 

Dear Authorities, 

 

I have been working in the IT & ITES industry since last 15 years and have handled over 100+ projects over the period of time. 

 

I have reviewed the copy of the emails in question. 

 

Being a part of this case, I would like to confirm that my finding clearly states that there is no confirmation the email has been received, this could happen due to negligence by the sender, also there could be fake as the email presented to me clear showing that it is a cut a paste from the working one. 

 

While using the email as a communication tool, it is important that you should use the correct address and save the delivery report to confirm that the message was delivered successfully, on which there is no evidences presented to me that it is the case. 

 

The evidence in this case clearly shows that an extra R was used by the sender in one of the emails, and there is the possibility that there is no errors in the system. 

 

Sometime the emails stay stack in the system for months even years, depends on the system used. 

 

As per emails presented to me, there is no evidences that emails are original, as it is only a cut an paste piece, there is high probability that them could even be fake ones, as there is no certifications, neither confirmation that the emails were received and no acknowledgment from the receiver present. 

 

Conclusion 

 

I will not recommend the use of the emails in the evidences presented by the respondent to be accepted as evidence. 

 

If you have any questions please do not hesitate to contact me. 

After a careful review of the report, the Tribunal held that Mr AS did not examine the device or access the server. Instead, Mr AS discussed general IT issues that might prevent the receipt of an email, which are not directly relevant to the specifics of this case. The report was found unhelpful and unsupportive of Mr Perez’ case, particularly because it does not address the “delivery receipts” that are in evidence. According to the Tribunal, the claim that the delivery receipt may have been fabricated was noteworthy but lacks any forensic support.[41]  

The Tribunal also observed that Mr AS did not address a number of issues in his report. Mister AS did not discuss the specifics of read receipts and did not detail how manipulation could occur, but merely asserted that tampering was possible without further explanation.[47] 

While the report was not ignored, the Tribunal held that it was unsatisfactory, as it failed to address the issues of delivery. The report was found general, lacks particulars, was submitted without any evidence of access to the device, email address, transactional history or server. The Tribunal thus assigned little weight to Mr AS’ evidence.[52] 

The application was ruled unsuccessful and the assailed decision was affirmed. 

Key Takeaways:

• Direct analysis and concrete findings are necessary to establish a reliable foundation for expert evidence. For example, IT experts should examine the actual devices, systems or data involved. 
• An expert report must be detailed, well-structured and include clear explanations of the findings and methodologies used. 
• Expert evidence must directly address the specific issues of the case. General observations are insufficient if they do not connect to the exact circumstances being considered. 

Read the full decision here.