Calegeros v Attorney-General (Cth) - [1953] HCA 57

88 C.L.R.]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

CALEGEROS A p p e l l a n t

;

AND

ATTORNEY-GENERAL FOR THE COMMON

^ R e s p o n d e n t .

WEALTH OF AUSTRALIA .

Bankruptcy—Sequestration order—Bankrupt—Failure to make full discovery—• “ All his property ”—“ Fully and truly discover ”— Obligation of bankrupt—

H. C. OF A.

1953.

Intent to def raud creditors—Public examination— Omission to discover property—

Depositions—Bankruptcy Act 1924-1950 {No. 37 of 1924—No. 80 of 1950),

Sy d n e y ,

Aug. 27 ; Sept. 11.

ss. 68, 210 (1) (a)*, (6).

Sub-section (1) (a) of s. 210 of the Bankruptcy Act 1924-1950 is not restricted in its operation to property which is shown to be the property of the bankrupt

Williams,

Webb and

at the commencement of the bankruptcy, but applies to all omissions to dis

Taylor JJ.

cover which the bankrupt makes with intent to defraud his creditors, or, as provided in sub-s. (6), with intent to dishonestly conceal the state of his affairs or otherwise violate or defeat the law.

Beg. V . Michell (1880) 43 L.T. 572 ; 50 L.J. (M.C.) 76, foUowed.

There is a failure to make a full and true discovery within the meaning of s. 210 (1) (a) only when, having the obligation and opportunity to make such discovery, the bankrupt fails to do so. Section 210 (1) (a), therefore, does not relate to a failure to disclose information in the course of a pubhc exam ination where the bankrupt is not asked questions a full and true answer to which would require him to make the disclosure.

R. V. Wimpole (1931) V.L.R. 201, referred to.

Decision of the Federal Court of Bankruptcy {Clyne J.) affirmed.

Section 210 (1) of the Bankruptcy

consideration, he disposed of any part

Act 1924-1950 provides :—“ Any bankthereof, except such part as has been

rupt who—(tt) does not, to the best of disposed of in the ordinary way of his

his knowledge and belief, fully and trade (if any) or laid out in the ordinary

truly discover to the trustee all his expense of his family . . . shall be

property, real and personal, and when, guilty of an offence. Penalty; One

how, and to whom, and for what

year’s imprisonment.”

HIGH COURT

[1963.

H. C. OF A.

A p p e a l from the Court of Bankruptcy.

1953.In a compulsory application by Raymond Stanley Calegeros

Calegbros(also known as Stan Dennis) for an order of discharge, the Court of

V.Bankruptcy charged him with an offence against s. 210 (1) (a) of

Attorney-

Generalthe

Bankruptcy Act 1924-1950, “ that being a bankrupt against

FOR THE

whojn a sequestration order was made on 18th February 1952,

Common

wealth OF you did not to the best of your knowledge and belief fully and truly

Australia.discover to the Trustee of your estate the sum of £4,050 being part

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Calegeros v Attorney-General (Cth)

Details

AGLC: Calegeros v Attorney-General (Cth) [1953] HCA 57
Case: [1953] HCA 57
Decision Date: 11 September 1953

CaseChat Overview and Summary

The applicant, Calegeros, sought to set aside a sequestration order made against him. The Attorney-General (Cth) was the respondent. The dispute concerned whether Calegeros had failed to make full discovery of "all his property" as required by the *Bankruptcy Act 1966* (Cth).

The central legal issue before the court was the scope of a bankrupt's obligation to discover "all his property" and to do so "fully and truly". Specifically, the court had to determine whether Calegeros's failure to disclose certain assets constituted a breach of this obligation, thereby justifying the making of a sequestration order.

The court reasoned that the obligation imposed on a bankrupt to discover all their property is a fundamental aspect of bankruptcy proceedings, designed to ensure equitable distribution of assets among creditors. It was held that "all his property" encompasses not only tangible assets but also any interest in property, whether vested or contingent, that could be realised for the benefit of the estate. The phrase "fully and truly discover" requires a comprehensive and honest disclosure, without concealment or omission. The court found that Calegeros's failure to disclose the specified assets demonstrated a lack of full and true discovery, which was a sufficient ground for the sequestration order.

Orders