Marler, S.M. v The Bankrupt

[1985] FCA 675

IN THE	FSDERBL	COURT	OF AUSTRALIA	)
)

GENERAL	DIVISION	)
)

BMTKRUPTCY DISTRICT OF T ~ E	STATE OF	) N O S . h1337 cm3a of 13834
)

bJALES	SOUTH	PIE51	A?JD	)
)

THE AUSTRALIAN CAPITAL ERRITORY )

MINUTES OF CIRDER

THE COURT OF!DERS THqT:

1. Each applicant be discharge? f rom 3ankruptcy.

KOTE :

Settlenent snd entry of orders 1 s dealt wlth In 1C:rder

17-4 of the Bankruptcy Rules.

CORAIY :	JACKSON J.
30 December 1395
PLACE :	SYDNEY

PWSONS In?. JU3GMENT

The unexpected brevlty of other matters wlth wh-ci? 1

iJas to deal tcday has given me time to res6 the macerlal

agaln. I n consequence of so doir?.;, I have formed a view which enables me to deal wlth the matter immediately snd I shall ROW proceed to do so.

The appllcanrs, xho arr husband and wlfe, were maie bankrLpt on their mm petltlons 57 seyestratlon zrders mac?

, m 77 Aprll 1 3 8 4 and Mr D.L. Nlcholl was appclntri trustee of

thelr estates. Fr N l c h o l l had previously acted 3s trustee

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pursuant to an authority under S .l88 of the Bankrdptcrr Act

1466 glven in May 1923.

The male applicant was admitted as a sollcltor in

1969 and practised as such untll 1980 whet? he Secame a

barrister. In 1981 the appllcants purchased a property,

Tynwali, at New Norfolk, Tasmania wlth a vlew to convertlng

the property to colonlal style guest accommodatlon and It was

that venture whhich in the end led to the appointment	Df a
trus-cee and flnally making of sequestratlon orders.

It had beer. 1r.zer.ded that Tynwald, as well as 5el.n.;

the slte of th? husiness would also be the flJture fa.r,il:J

resldence. The venture poved knsuccessful, however, Sec:?cse

of 2 nurnber of cost factors referred to In the a f f ldav lc of

the male appllcan-c. Thereafter the mal? a2pllcant endeavoured

to prop up the financial sltuatlon by returning to practlce 2z

the bar In Sydney and the 3ppllcants attem2ceri to ss11 Tynwald

mtholut success.

In the event the property wss sold by c’ne first

mortgages and. the net proceeds of the sale wers such that the liablllty to the second mortgagee xas not satlsfled. The male a_opllcant has cmtlnued in practice at the bar, Sbt hls

ability 50 practlce effectively has been hampered by flnanclal

constralnts attendant upon hlm. The fenale applicant has

workeL as a legal secretary m an endeavour co =sslsr, ths

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support of the chlldren.

The male applicant has now been offered employment by

a firm of solicitors as a solicltor and feels, and I accept,

that there would 3s considerable difficulties attendant upon

hls doing so effectively In a class of wock in vhlch he wlshes

to enqage if he were to remaln an undischarged bankrupt.

Although the tune whlch has elapecl since the

bankruptcy 1s not partlcularly long, I am persuaded that tne

case 1 s one where orders for discharge should be made in

respect of each agplicant. I take that m e w Secause of all

the clrcumstances of the cases, but tnere are s m e matters

which I should nentlon speclflcally.

There are !a) the fart that t h e trustee's report it? each matter conxams nothing adverse to tke sppllcsnts; !b)

the fact that a substantial contrlbution has been made to the

estate; (c) the fact that the princ1;ai credltor has attende*i

cn the hearing of the applicatlons and indlcaced that it dses

r ,ot oppose the mahng of orders for cllscharge; and (d) the

fast that nelther the trustee	nor any other credltor oFposes
the application.

I would also mention that I am satisfied thar, the

bankruptcy m d che events lsaainq to ic 3~6. those consequent

upon l t have had a destruccive effect cn the family llfe of

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the applicants and their chlldren and that no useful purpose

would be served by continuing that sltuatlon.

In these circumstances, 1 prapose to make an order

for discharge. In each of these matcers I make an order that

the appllcant be d~scharged. from bankruptcy.

I certify that this and th? 3

preceding pages are a true copy of the

2easons for Judgment herem of

h ~ s Hor,our Mr Justice Jackson.