Furness, Re L.A. - [1986] FCA 4

Bankruptcy Act 1966, S. 149

Ean!xuo;cv Amendment Act 1980. 5 . 7 2

JUDGE MAKING ORDER :

Neaves 2 .

DATE OF ORDER	: 10 January 1986
WHEP.E MADE	: Canberca

M I N ' J T E

ORDER

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> , -' 1 THE COURT ORDERS

THAT the app1:cation by

the Official Trustee in

, I

I.- -

. . I -Bankruptcy

for a direction pursuant

to sub-S.

(12) of 5.149 of the

- ' . '

Bankrurtcv Act 1966 (Cth) that Leslie Angus

Furness, a bankrupt,

, . -

be not discharged

from bankruptcy by virtue of that section be

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. y > .

, . . .

. . ..

, I

I - , - ' ~ dismissed.

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I ,. , .

' NOTE:	The settlement and entry of orders is dealt with in rule
124 of the Bankruptcy Rules.

B: Neaves J.

l0 January

1986

REASONS FOR JUSGMENT

This is

application by the Official Trustee in

Bankruptcy, the trustee of the estate

of Leslie Anyu? Furness, a

bankrupt, for a direction pursyant to sub-s.(12) of 5.149 of the

~ . .' --

1 9 6 6

(Cth) ("the Act")

that the bankrupt be not

Bankruptcy Act

, I .

'	discharged from bankruptcy by virtue of that section.

a-,.

. . . . the

.A'-sequestratlon

rder was

made

against

the

estate

bankrupt on 8 August 1974 . The bankrupt

was

publicly

, .

' ,

examined on'l8 February 1975, 28 April 1975 and 10 and 11 July

-, . '1975.

On. 9 January 1979 the Official Receiver for the Bankruptcy

District of the

State of New South Wales and the Australian

Capital Territory, who was then the trustee

the estate.

entered an objection, in the prescribed

manner, to the discharge

L '	'
On the hearinq of the application the trustee was

represented by counsel. The bankrupt appeared In person and made

submisslons to the Court but did not adduce any evidence. There

is evidence before the Court that the creditors of the estate

were notified of the date

of hearina of tEe application. There

was, however, no appearance on behalf of any creditor.

I n his

statement

affairs the bankrupt disclosed

assets of $785 and credltors with debts totalling $266,100.

addition to the fissets

disclosed the bankrupt claimed to be the

owner of certain poker machines

to the value of $20,000 whlch

were, he said,

the

subject of litigation. The trustee

has

3 .

The sum of $832.51 has been brouqht t o the c?-eTllt of the estate ,account. Thicty-three proofs of debt have beep lxl?ed aqain5r: the estat? for. amounts cotallin? 5170,552.37. The claim-

lodged Include clalms by

a number of creditors who were not

dlsclosed by the bankrupt in his statement of affairs. those

clalms totalllnq $39,945.09.

Ten clams have been admitted to rank for…

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 Furness, Re L.A.

Details

AGLC: Furness, Re L.A. [1986] FCA 4
Case: [1986] FCA 4
Decision Date: 1 Oct 1986

CaseChat Overview and Summary

The case of Re L.A. Furness involved an application by the Official Trustee in Bankruptcy to prevent Leslie Angus Furness, a bankrupt, from being discharged from bankruptcy under section 149(12) of the Bankruptcy Act 1966 (Cth). The Official Trustee argued that the discharge of Furness should be withheld due to his dishonest and unsatisfactory conduct both before and after his bankruptcy, as well as his failure to cooperate in the administration of his estate. Furness, in turn, argued that he had no interest in commercial activities and wished to focus on beekeeping and caring for his wife.

The court considered the general principles for determining whether to prevent a bankrupt's discharge by operation of law. It found that Furness's conduct both before and after his bankruptcy had been dishonest and unsatisfactory, and that he had not cooperated in the administration of his estate. The court also noted that Furness had not made any significant contribution to his estate for the benefit of his creditors despite having access to substantial funds. However, the court took into account that Furness was in his seventieth year and had been a bankrupt for over eleven years. Ultimately, the court decided not to make an order preventing Furness's discharge from bankruptcy, considering his age and lack of interest in commercial activities. The court also noted that Furness had chosen not to give evidence on oath regarding his past conduct or future intentions.

Orders