Abigroup Ltd v Abignano

[1992] FCA 567

Re: KURT and GERALDINE PICCARDI
And: GEORGE GREGORY GRIVAS
No. W 1607 of 1986
FED No. 567
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT IN THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Bankruptcy - application by trustee that bankrupts not be discharged by virtue of s.149 Bankruptcy Act 1966 - whether bankrupts co-operated in administration of estates - whether matters still subject of investigation - Bankruptcy Amendment Act 1991 - whether applicable to the proceedings.

HEARING

SYDNEY

#DATE 16:7:1992

The Bankrupts appeared in person

Solicitors for Trustee: Sullivans

ORDER

THE COURT ORDERS:

That order made on 18 November 1991 is varied by

substituting for the period of seven years commencing from

18 November 1986, a period expiring on 3 December 1992.

Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.

JUDGE1

This matter has a complicated history. In November 1986 a sequestration order was made in respect of the estate of Mr and Mrs Piccardi. Subsequently, an application was made for annulment of those orders and at first instance an application for annulment was made. However, a Full Court on appeal set aside the annulment and the history of the matter to that point of time appears in the reasons of the Full Federal Court given on 23 June 1989 and I need not repeat that history.

1. There was an application made on behalf of the bankrupts to the High Court of Australia for leave to appeal against the decision of the Full Court. That leave was refused in September 1989. By force of the statute the bankrupts were due to be discharged on 18 November 1991. On 15 November 1991, an application was made to the court ex parte on behalf of the trustee seeking orders that the period at the expiration of which an objection to the discharge of the bankruptcy will elapse, be a period of seven years commencing from 18 November 1986.

2. Alternatively an order was sought that the bankrupts shall not be discharged from bankruptcy by virtue of s.149 of the Bankruptcy Act 1966 ("the Act"). I granted short leave for that application and made the matter returnable on 18 November, which was the following Monday. I directed service of the application as soon as practicable. It will be noted that the 15 November was a Friday. The trustee endeavoured to serve the process upon the bankrupts over the intervening weekend, but as it happened, the bankrupts had at about this time moved house from Newcastle, where they had lived for some years, to Queensland.

3. When the matter came before me on the 18 November, I was informed by counsel then appearing for the trustee that it had not been possible to serve the bankrupts or even notify them of the trustee's application to that point of time. The dilemma that then confronted the Court was that, on the one hand, if the Court were to decline to make any order…