Darcey, Re P.M. Ex Parte Pre-Term Foundation

[1986] FCA 622

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

DIVISION GENERAL )

BANKRUPTCY DISTRICT OF NEW SOUTH WALES ) No. P.721 of 1986

AND THE AUSTRALIAN CAPITAL TERRITORY	)
- RE :

PATRICK MICHAEL

DARCEY

Appllcant

EX PARTE:

PRE-TERM FOUNDATION

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Patrick Mlchael Darcey was made bankrupt by virtue of a sequestration order whlch was made by Evatt J. on 28 October

1986. From that order, there has been an appeal lodged, and what

is now before me 1s a motion whlch seeks a suspension of the order or a stay of the order pendlng the hearing of the appeal. Some question 1 s ralsed ~n the Australian Bankruptcy Law and

Practlce, Fifth Editlon, page 100 and also at page 126,

concerning the power of the Court having regard partlcularly to

the provislons of s.43(2) and s.58(1), and also having regard to

what was sald in Re Deriu (1970) 16 F.L.R. 420. At page 422, the

present Chief Justlce of the High Court, when sltting as a judge

_- . -.

In the Federal Court of Bankruptcy, drew attention to the fact

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that even the rescission O E a sequestration order would not put

an end to a bankruptcy, a proposltlon €or whlch he clted the

support of Willlams J.	1n Cameron v. Cole (1944) 68 C.L.R.	5 7 1 at
page 610.

However, I do not think that ~n thls case it 1s

necessary to enter upon the questlon of the extent of the Court's

powers in thls regard, because it does not seem to me that a case

has been made out that there is an occaslon calling €or the

exerclse of my discretion, assuming that I have the appropriate

powers. It is accepted by the applicant, and indeed appears to

be common ground, that there are no other creditors than the

petitioning creditor, and that the appllcant has no assets and elther no Income or no significant Income. That of course does not preclude, in itself, the possibillty that he may come Into some lnherltance, or in some other way his positlon may change, but at the present tlme he 1 s certainly not in the situatlon

that, for instance, might concelvably exist in some cases where a person carrying on business might be gravely embarrassed by a sequestration order, against whlch he mlght be appealing on bona fide grounds, and might seek some intervention of the Court. I

say nothing about such a case. The present case 1s totally

different. The applicant is a member of a religious order, has taken vows which Include a vow of poverty, and appears not to have or to have had over a substantial period of years either assets or (at any rate, dlsposable) income.

I am unable to see that any ground has been made out on which I could properly exercise a discretion to make some order pendlng the hearing of the appeal. Were proceedlngs to be taken to seek, for example, to have a public examinatlon prlor to the hearing of the appeal, It may be that some lnterventlon might be called for, but it would not on the face of the matter, as I see it, require anything other than the exerclse of a discretlon as to whether any such examination should be adjourned. Wlthout attempting to prejudge such a matter, I can see that there might be powerful grounds for adjourning it. The question does not

arise because, at least for the present, there seems to	be	no
suggestion that such an examlnation 1s about to be held.

The applicant has filed a statement of affalrs, and it

1 s not suggested that that statement of affairs is other than

consistent wlth hls claimed lack of assets or income. Accordingly, I dismiss the appllcation whlch 1s presently before me, and I think the approprlate order to make at this stage,

apart from dismisslng the application, is simply to reserve the

costs for consideration after the appeal has been dealt wlth.	I
so order.

I certify that this and the

precedlng two ( 2 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

Associate

Dated: 1 December, 1986.