Haines, Re M.F. Ex Parte Official Trustee in Bankruptcy

[1986] FCA 305

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IN THE FEDERAL COURT OF AUSTRXIA	)
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OIVISIOM	GENERAL	)	NO. 596 of 1986
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BANKRUPTCY	DIS RICT	OF	)
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THE STATE OF VICTORIA )

RE ; MICHAEL FREDERICK HAIMES Bankrupt

M PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY	Applicant
THE COURT: Sweeney J.

: 8 July 1986

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This is an application to review a decision of a Deputy

Registrar who refused to grant an application for the adjournment

of a section 69 exammation of the bankrupt in this case. It was

pressed upon her as it has been pressed upon me that she should

have granted that application because to continue it would be to

expose the bankrupt to preJudice whereas to adjourn it would not

prejudice the trustee.

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The adjournment was sought following the lodging by the

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applicant of an appeal against an order made by me on 12 June 1986 i

that the date of the period at the expiration of which the

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ob~ection dated 22 May 1984, entered under paragraph 149(3)(c) of

thc Bankruptcv Act 1966 ("the Act") will lapse, be 20 March 1987.

The applicant submitted that if the appeal is upheld then the

bankrupt would be discharged from bankruptcy as at and from 25

June 1986 pursuant to the operation of s.149 of the Act.	- prior
to the date of the examination.

Reference was also made to the undeniable fact that

4 considerable time had elapsed after 2 February 1983 when the

examination of the bankrupt under section 69 was adjourned until

. X its resumption by notice given at the beginning of this month.

That delay is real and is, I think, relevant. However, it was

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clear to the Deputy Registrar, because she had conducted the

examination of a bank manager under section 81. that there was an

allegation that the bankrupt had been operating a bank account

under a name other than his own which account had been very active

and through which large sums of money had passed. In the exercise

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of her discretion the Registrar refused to make an order

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?	adjourning the	examination.
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I entertain some doubt myself whether the fact that a person

is discharged by operation of law under section 149 takes that

:	person out of the reach of section	69 which provides that:	!
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"The Official Receiver or the trustee of the estate of a

bankrupt may, at any time, make an application, in

writing, to the Reqlstrar for the examination of the

bankrupt, on oath as to the conduct, trade dealings.

property and affairs of the bankrupt".

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The word “bankrupt“ is def lned In sect Ion 5 of the Bankruptcy

Act In these terms:

“Bankrupt means a person -

(a) against whose estate a sequestration order has been

made; or

Lb) ....I’

That definition is wide enought to Include within its reach a.

person who has been dlscharged by operation of section 149. That

meanlng, if given to the word “bankrupt“ in section 69, is a

meaning that may be regarded as being consonant with the general	I .
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objects of the Bankruptcy Act and the bankruptcy law. The

legislature might well have thought that, if it became known to a

trustee after the time of the discharge of a person by operation

of section 149 that there were matters upon which an examination

of that person might be desirable in the interests of creditors	or
of the persons who had dealings with the bankrupt, or indeed	in

the interests of commercial morality generally, a trustee should

not be shut out from havlng an examination of that person.

However, as this matter has arisen quite suddenly and the

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representatives of the parties have not had an opportunity to

consider that aspect of the matter in any depth and put considered

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submissions on it, and the court itself has had but scant

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opportunity to consider it, I would prefer not to base my own

decision upon an attempted answer to that question. I prefer

rather to take my stance upon the following propositions - l

(a)	that what the Deputy Registrar had before her was an	1 ’
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order of the court which. so long as it stands, produces

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the result that the bankruptcy in question continues;

(b) d notice of appeal having been glven does not give rise

to any stay of that order; and

(c)	in exercising her discretion it seems to me it was
perfectly proper for her to refuse to grant the

adjournment that was sought, even given full allowance to the circumstances which Mr Scerrl has put in favour of the bankrupt's case. I find no error in what she has

done and I would not interfere with her decision.

I herefore leave the decision of the Deputy Registrar

standing and direct that the examination be continued before her.

I certify that this and the

preceding three ( 3 ) pages are a

true copy of the Reasons for

Judgment h reln of The

Honourable	Mr.	Justice
Sweeney

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........ ... Associate

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