Foster, P.C (also known as) foster, P.m. v The Official Trustee in Bankruptcy

JUJ-JGM ENT Na .l

IN THE FEDERAL COURT OF AUSTRALIA 1 I

GENERAL DIVISION 1 QLD B759 of 1984

BANKRUPTCY DIST~ICT OF THE SOUTHERN 1

DISTRICT OF THE STATE OF QUEENSLAND )

RE: PETER CLARENCE FOSTER also known as
PETER MICHAEL FOSTER

EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant
PETER CLARENCE FOSTER also known as
PETER MICHAEL FOSTER, a Bankrupt
Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J.
DATE OF ORDER: 23 NOVEMBER 1989
WHERE MADE: BRISBANE
THE COURT ORDERS THAT:

1. the bankrupt not be discharged by virtue of s.149 of the Bankruptcy Act 1966;
2. the bankrupt pay the applicant's costs of and incidental to these proceedings to be taxed;

REGIBTRY

THE COURT DIRECTS THAT:

3. the official trustee send a copy of Proserpina Abarouez-Delacruz's affidavit to Dun & Bradstreet in the U.S:A.

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

AUSTRALIA
PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA ) i

GENERAL DIVISION ) QLD B759 of 1984
BANKRUPTCY DISTRICT OF THE SOUTHERN )
DISTRICT OF THE STATE OF QUEENSLAND )

RE: PETER CLARENCE FOSTER also known as
PETER MICHAEL FOSTER

EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant
PETER CLARENCE FOSTER also known as
PETER MICHAEL FOSTER, a Bankrupt
Respondent

PINCUS J . 23 NOVEMBER 1989

EX TEMPORE REASONS FOR JUDGMENT

The bankrupt became so on 26 November 1984. His
bankruptcy has not produced any dividend, although it appears from

the material likely that he has had access to substantial funds,

business in which he is engaged seems dubious.

being apparently in business in a big way. The nature of the

The trustee applies for an order that the bankrupt not be discharged under s.149 of the Bankruptcy Act 1966.
The applicant trustee has obtained what purports to be a
letter from the bankrupt to his accountant dated 21 March 1989

which mentions that the Official Receiver's office gave him permission to leave Australia, on condition that he return by the end of March or seek approval to stay longer. The letter goes on:

"I have today faxed them advising that I need more time so they don't know where I am, I have said they can communicate with me through my accountant in England, therfore you may get a fax for me care of your office If you do, can you just direct it on to me here - they do not know I am in America and I certainly don't want them to find out.
I am due to be discharged in November so I only have to stall for a few more months."

There is other material, but (as I said to Mr Logan, for the Official Trustee, in the course of his address), it seems to me that the letter from which I have quoted provides in itself sufficient grounds to alter the prima facie position, which is that the bankrupt would be automatically discharged on 26 November 1989. There was also correspondence indicating that this application has come to the notice of his lawyers and they have written about it making submissions which, with respect to the lawyers, do not seem to have any relation to the facts of the matter.

The circumstances, therefore, are such that in my
opinion an order should be made under s.149(12) of the Bankruptcy
Act 1966 which reads.as follows:

"The Court may, at any time before the discharge of a bankrupt, on the applicaton of the Registrar, the Inspector-General, the trustee or a creditor, direct that the bankrupt shall not be discharged from bankruptcy by virtue of this section."

The effect of making such an order will be that the bankrupt will have no automatic discharge. Some people are never discharged. If he wants a discharge from bankruptcy in this country, he must come and apply for one and it seems clear that he would have a lot to explain if he did that.

The order wil therefore be that the bankrupt not be discharged by virtue of s.149. It will also be ordered that the bankrupt pay the applicant's costs of and incidental to these proceedings to be taxed.

preceding

: cerllfy that this and the

pages are a true copy of the reasons for
judgment hcrein of His Honour

Mr. Justice Pincus

Associate

Dated 2 3 Uv.+b I??%

The case involved an application by the Official Trustee in Bankruptcy to prevent the discharge of the bankrupt, Peter Clarence Foster, also known as Peter Michael Foster. The dispute centred around whether Foster should be discharged from bankruptcy, given that he had access to substantial funds but had not produced any dividend for creditors. The matter was heard in the Federal Court of Australia, General Division.

The primary legal issue was whether the court should make an order under s.149(12) of the Bankruptcy Act 1966, preventing Foster's discharge from bankruptcy. The court had to consider whether Foster's actions and circumstances warranted such an order. This involved assessing evidence that Foster had potentially concealed his whereabouts and assets, and whether this justified preventing his discharge.

The court, presided over by Justice Pincus, found sufficient grounds to prevent Foster's discharge. The letter from Foster to his accountant, where he mentioned evading communication with the Official Receiver's office and planning to avoid detection while abroad, was critical. The court noted that Foster's actions indicated a deliberate effort to avoid his bankruptcy obligations. Justice Pincus ruled that Foster should not be automatically discharged, and that he must apply for discharge if he wished to be released from bankruptcy. The court also ordered Foster to pay the Official Trustee's costs associated with the proceedings.

The final orders of the court were that Foster not be discharged by virtue of s.149 of the Bankruptcy Act 1966, and that he pay the Official Trustee's costs of and incidental to these proceedings, to be taxed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA	1	I
GENERAL DIVISION	1	QLD B759 of 1984
BANKRUPTCY DIST~ICT	OF THE SOUTHERN	1

RE:	PETER CLARENCE FOSTER also known as PETER MICHAEL FOSTER
EX PARTE:	THE OFFICIAL TRUSTEE IN BANKRUPTCY

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	23 NOVEMBER 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

business in which he is engaged seems dubious.	being apparently in business in a big way. The nature of the	The trustee applies for an order that the bankrupt not be discharged under s.149 of the Bankruptcy Act 1966.
The applicant trustee has obtained what purports to be a letter from the bankrupt to his accountant dated 21 March 1989
which mentions that the Official Receiver's office gave him permission to leave Australia, on condition that he return by the end of March or seek approval to stay longer. The letter goes on: