Matson, Re R.G. Ex Parte Official Trustee in Bankruptcy

[1986] FCA 17

Re: RONALD GREGORY MATSON
Ex Parte: THE OFFICIAL TRUSTEE IN BANKRUPTCY
No. NSW E780 of 1977
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - objection to discharge - order fixing time of lapse of objection - whether granted ex parte - order of interim kind.

Bankruptcy Act 1966, ss. 149(3)(c), 149(8), 149(12)

Bankruptcy Amendment Act 1980, s. 72(2)

HEARING

BRISBANE

#DATE 23:1:1986

ORDER

The period at the expiration of which an objection dated 30 May, 1980 entered by Daniel Joseph Noel Bluett under paragraph (3)(c) of s. 149 of the Bankruptcy Act 1966 will lapse, be extended until 31 March, 1986.

The applicant have leave to amend his application so as to include an application under s. 149(12) of the Bankruptcy Act 1966.

Material in support of the application be filed and served on or before 12 February, 1986.

The matter be mentioned again at 2.15 p.m. on 14 February, 1986.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for an order that the period at the expiration of which an objection entered under par. 3(c) of s. 149 of the Act will lapse be extended for such further period as the court may determine. The bankrupt attained that status on the 21 November 1977.

1. The material before me includes an objection to his discharge which was made on the 30 May 1980 under s. 149 of the Bankruptcy Act. That provision was repealed and replaced by the present s. 149 by Act No. 12 of 1980, which has a transitional provision, namely s. 72(2). The effect of the transitional provision is that the present s. 149(8) is to be read as if the reference in it to the date of bankruptcy were read as a reference to the date of commencement of that section, that is s. 72(2) of Act No. 12 of 1980. That date of commencement was 1 February 1981. Mr. Dutney of counsel for the applicant contends, and it seems to me to be correct, that the effect of the transitional provision with respect to the present case is that, absent any order under section 149, a discharge will occur under s. 149(8) on the 1 February 1986.

2. The present application is brought ex parte, one reason for that being, as is said, that there was thought to be some apprehension about steps which the bankrupt might take if he were served with the papers. The information upon which the application is based is, in essence, that an officer of the Queensland police force, called to investigate a robbery at the premises of the bankrupt, found there goods of considerable value. The information was notified to the trustee on 3 December 1985, and it seems clear from what Mr. Dutney has candidly told me that the delay since then has been partly due to an uncertainty as to how to proceed.

3. I am somewhat troubled by the notion of making an order under s. 149(8) in the absence of the bankrupt. Ex parte orders which substantially affect people's rights should only be made, in my view, in circumstances of an extreme kind. Mr. Dutney argues in effect that such circumstances exist here, and has referred me to the affidavit of Ms. Scheelbeck, on which the application is based, and also to the report of the Official Receiver made on the 17 September 1980.

4. With some hesitation, I have come to the view that I should accept Mr. Dutney's submission, and I propose to make an order under s. 149(8) to enable the applicant to apply under s. 149(12); that is, I propose to order that the period at the expiration of which the objection which I have mentioned will lapse be a period expiring on 31 March 1986. The applicant in the meantime must file his material to ground the substantive application, that is the application under s. 149(12).

5. I will order that the application be amended so as to include an application for an order under s. 149(12), and that the application as amended, together with any material in support of it be filed and served on or before Wednesday, 12 February 1986.

6. I will order that the matter be mentioned further at 2.15 p.m. on Friday, 14 February 1986.