Eade, K.N. v Worrell, I. & Anor Eade, A.Y v Worrell, I.

[1990] FCA 637

JUDGMENT NO. . ....... l...-.- 637 90

IN THE FEDERAL COW RT OF

GENERAL DIVISIO N	AUSTRALIA	)
1

BANKRUPTCY DISTRICT OF THE	1
STATE OF OUEENSLANQ	)

QX 149 of 1988

RE :	KENNETH NORMAN EADE
EX PARTE:	IVOR WORRELL. THE TRUSTEE OF THE PROPERTY OF KENNETH NORMAN EADF,

QX 150 of 1988

RE :	ANNE YALANDA EADE
EX PARTE:	IVOR WORRELL. THE TRUSTEE OF THE PROPERTY OF ANNE YALANDA EADE

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	17 AUGUST 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   The application be adjourned to Monday, 4 February 1991 at 10.15 a.m.

2.   The costs of and incidental to the hearing be reserved.

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

3.   The trustee and the reapondents are at liberty to apply to bring the matter on before 4 February 1991 on 14 daya written notice.

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE STATE OF OUEENSLAND

RE:	KENNETH NORMAN EADE
EX PARTE:	IVOR WORRELL. THE TRUSTEE OF THE PROPERTY OF KENNETH NORMAN EADE
RE :	ANNE YALANDA EADE
EX PARTE:	IVOR WORRELL. THE TRUSTEE OF THE PROPERTY OF ANNE YALANDA EADE

CORAM: PINCUS J.

PLACE: BRISBANE

W: 17 AUGUST 1990

EX TEMPORE REASONS FOR JUDGMENT

In this matter, Mr Kenneth Norman Eade and his wife,
Anne Yalanda Eade, have not complied with the terms of the

deed which is mentioned in the application. That is common

ground. The question is whether or not the court should be	satisfied that it is in the interests of the creditors to
terminate the deed within the meaning of section 236(2) of the pankru~tcv Act 1966, and, of course, ultimately the exercise of discretion.
The peculiarity of the case is that Mr Eade has given evidence to the effect that he expects that, within the next few months, his situation and that of his wife will improve and that a substantial payment or substantial payments will be able to be made. His opinion is that if, by the end of this year, his affairs have not turned around, he would be content to go bankrupt and give up at that stage.
One of the difficulties which the applicant has in this case is that, to be satisfied it would be in the interests of the creditors to terminate the deed, it seems to me that something more must be shown than merely that an opportunity for investigation would be afforded. That is so, I suppose, in every case of bankruptcy.
Here, the deed assigns by clause 1 and the Schedule all the divisible property of the debtor, and the trustee, if he became bankrupt, could, on the evidence, get nothing more than that, and that is itself nothing, on the evidence. It is possible, of course, that on bankruptcy more assets would be unearthed, but that is merely speculation.
All that having been said, if in fact the expected improvement in Mr and Mrs Eade's financial position in the next few months does not occur, I would agree with what Mr Eade says, that he might as well go bankrupt.
I had suggested that the matter should be adjourned sine die. It seems to me, upon reflection, better to make an order along the same lines, but more precise, and to adjourn it to a fixed date. The reason is that the application
ehould, in the end, be disposed of one way or another, rather than being simply left hanging.
The orders will be that the application will be adjourned to Monday, 4 February 1991 at 10.15 am; secondly, the costs are reserved; thirdly, the trustee and the respondents are at liberty to apply to bring the matter on before 4 February 1991 on 14 days written notice.
Next, it is noted that Mr and Mra Eade undertake to give a monthly report on the first Monday of each month to the trustee, explaining their current financial position and the expectation they have as to resuming payments under the deed, and giving details of their respective financial positions and incomes.

I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr Justice Pincus.

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~ s s o c z ~ e

Date / 7 ,+v& I 790