Barns, R.A. v Barns, R.A

[1990] FCA 532

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JUDGMENT NO. ..532~.%	t I -
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IN THE FEDERAL COURT OF AUSTRALIA 1 1 -

GENERAL DIVISION	1	QB 8 of 1987	I
BANKRUPTCY DISTRICT OF THE SOUTHERN	1
DISTRICT OF THE STATE OF OUEENSLAND	1

RE:	ROY ADRIAN BARNS
EX PARTE:	ROY ADRIAN BARNS

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(Applicant) i-

BURNS PHILP L CO. LIMITED

1.

(Respondent)	1 -
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MINUTES OF ORDER	,.
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JUDGE MAKING ORDER:	PINCUS J.	I
1 .:
DATE OF ORDER:	21 SEPTEMBER 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:	!

1. On Mr. Barns giving the undertaking not to enter

into a business on his own account, or take part in	i
the management of a company under his control for
the purpose of carrying on a business, for a period	C
of one year from this date, he be immediately	r ,
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discharged from bankruptcy.	I
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AUSTRWA

NOTE:	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.  l,,

:

03 OCT 1990
FEDERAL COURT OF

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1 QB 8 of 1987
BANKRUPTCY DISTRICT OF THE SOUTHERN	1
DISTRICT OF THE STATE OF QUEENSLAND	1

RE:	ROY ADRIAN BARNS
EX PARTE:	ROY ADRIAN BARNS

(Applicant)

BURNS PHILP & CO. LIMITED

(Respondent)

CORAM: PINCUS J.

PLACE: BRISBANE

m: 21 SEPTEMBER 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an application for an order of discharge, rendered necessary by the fact that the trustee has objected to a discharge under S. 149 of the Bankruptcv Act 1966. The date of sequestration order was the 7th day of January 1987,

so that in the ordinary course	Barns would have been
discharged on the 7th day of January 1990. He attributes his	bankruptcy to the fact that he was not paying attention to his
business; he suggests he was not well at the time, and he
trusted employees - in particular, an accountant. He says, in a word, that it was incompetence which caused his bankruptcy.
There is no suggestion that there was any dishonesty on the part of Mr Barns, although the trustee does complain, justifiably, as it seems to me, of the application by M r Barns of some moneys received from the sale of a motor vehicle to his own purposes rather than to the creditors. The trustee also complains of lack of co-operation and, although I have heard what Mr Barns says about that, I must say I still have the impression that the trustee's complaint has some justification.

I can understand the difficulty that a person in M r

Barns' position is in; that he says he needed accounting services and suggests the accountants were not very interested in providing them, which may not be surprising if they were not getting paid. It does not seem to me that it was really good enough to do what M r Barns did, and that was to leave it to the accountants.

He does not seem to dispute that they did not perform as he wished, and I think he has to take some responsibility for that. In short, I do have the impression that Mr Barns did not take his bankruptcy as seriously as he might have done. However, a more practical problem is this:

employment in the real estate industry (despite the difficult	that M r Barns says that he thinks he may be able to get
times we live in) if he is not bankrupt, and that makes sense to me. He also says that he does not intend or contemplate that he commence in business on his own account in real estate for two or three years, that timing being related to the prospect of an upturn in the market.
It seems to me in the circumstances to be desirable to impose a condition upon the bankrupt. If the bankrupt is willing to undertake not to enter into a business on his own account, or take part in the management of a company under his control for the purpose of carrying on business, for a period of one year from this date, I am prepared to give him an immediate discharge.
The advantage of this, from the point of view of the Court, is that the condition recognises the trustee's complaint, which seems to me to have some justification. The condition does not seem, on the other hand, to involve Mr Barns in any significant disadvantage. However, that is what I am prepared to do, if M r Barns will give that undertaking.
On M r . Barns giving the undertaking which I indicated I desired, the order will be that Mr. Barns be immediately discharged from bankruptcy.

two preceding pages are a I certify that this and the

true copy of the reasons

for judgment herein of his , '

L .

Honour Mr. Justice Pincus.

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