Re Barry Richardson v Ex Parte Graham Lindsay Starkey

[1991] FCA 897

i

I S E N T % Y : X ~ ~ O X Telccopier 1021 ;30- 1-92 : 1 1 : 2 4 : 012100051* PRINCIPAL REGISTRY:# 2

JUDGMENT No. 893 QJ....

RE I	RXCHARDBON
EX PARTEI

JUDGE W I N G ORDER; PINCUS J.

M E OF ORDER! 12 JULY 1991

!amLN&ul BRXSBANE

1. Under s . 1 4 9 ( 8 ) of the-v Act 1966, that the

period at the expiration of which the objection
entered on 12 May 1989 will lapse, be a period of 10

yeare commencing on the date of the bankruptcy.

K!!U:	Settlement and entry of orders ie dealt with in Rule
124 of the Bankruptcy Rulee.

SENT 9 Y : X e r o x T e l e c o p i e r 1021 :30- 1-92 : 11:24 i 072100051+ PRINCIPAL REGISTRY:# 3

<

1
1

CY DXBTRICT OF THE ) No. QB 609 of 1986

OF 1

RE I	W R Y	RICHARDSOU
EX PARTE!

a:  PINCUS J.

M t BRXBBANE
12 JULY 1991

Thie ie an application by M r . G.L. Btarkey, the

truetee in the estate of Barry Richardeon, Mr. Richardeon was
made bankrupt by a aequeatration order of 14 July 1986. It
appear0 from the evidence that around that time he moved and
took up residence in the United States at an addresa in

Florida. He contacted Hr. Starkeyre firm by telephone from

that address ~hortly	after the bankruptcy, but he informed the
permon who spoke to him that he di~puted	the debt owed to the
petitioning creditor. He also said in effect that he owed

about a million dollars and had no aesete. Since then there
ha0 been no further communication from Mr. Richardeon and the

trustee ha# not been able to contact him.

On 12 Hay 1989 M r . Starkey lodged an objection under

s.149(3)(c) of the -tcv A c t 1966 and the result of that

was to extend bankruptcy from three years to five under

e.149(7). Under that same provision, paragraph (b), the five

years may be further extended by an order under sub-s.(E),

which reads as follows:

"The Court may, at any time before the
expiration of 5 years from the date of the
bankruptcy, on the application of the
Registrar, the Inspector-General, the trustee
or a creditor, order that the period at the
expiration of which an objection entered under
paragraph (3)(c) will lapse be such period,
being a period exceeding 5 years, commencing on
the date of the bankruptcy as is specified in
the order".

The provisions of the section, namely subsection (10), require that in deciding whether to make an order under that provision, subsection (E), the Court take into account such matters, if any, as are specified for the purposes of the subsection.

The application which is presently made by Mr.

Starkey is, in effect, for an order under s.149(8) having the effect of extending the bankruptcy. Mr. Starkey has appeared for himself today and has proved to be very helpful. The

matters prescribed by s.149(10) appear in rule 51A and I have

studied them. It is necessary to mention not all of them but

some for present purposes: paragraph (a) is "whether the

bankrupt is able, or is likely within 5 years from the date of the bankruptcy to be able, to make a significant contribution to his estate", and Mr. Starkey frankly confesses he simply does not know about that. Paragraph (b) is "whether the discharge of the bankrupt would prejudice the administration of his estatet'. Mr. Starkey's comment there is that if it should happen that the bankrupt should reappear and it emerge that he has assets, then his having been discharged will

3   I

indeed prejudice the administration of the estate. That seems
to me to have some substance, although I must say it seems
rather improbable to me that the bankrupt is likely to have
any assets available for distribution. Paragaph (c) is
"whether the bankrupt has co-operated in the administration of
his estate". On Mr. Starkey's evidence he plainly has not.
Hone of the other matters, it seems to me, need special

mention, although I have in fact adverted to them.

The question is whether or not an order should be

made as Mr. Starkey says, or whether the bankruptcy should
simply be allowed to lapse, as it will do at the expiration of
five years: that is, on 14 July 1991. The argument in favour
of making an order, as sought by Mr. Starkey, is that the
extension of the bankruptcy may advantage the creditors and
would not seem at present, at any rate, to make any
significant difference to the bankrupt, Mr. Richardson, who
has simply, or virtually, ignored the bankruptcy. The

argument against it is that there is a likelihood that the

order for extension will be futile.

It must also be said that because of lack of

knowledge of the whereabouts of the bankrupt (who really might be anywhere in the world or even dead) the application has not been served upon Mr. Richardson, nor is the case one in which

there would be any point in seeking an order for substituted service. On the other hand, if the order, having been made, comes to the knowledge of Mr. Richardson and he is offended by

it, he can, of course, apply to set it aside, it having been made in his absence, or if he wishes, appeal against it, and no doubt he would obtain an extension of time.

It seems to me in the circumstances that Mr. Starkey

has made out a case for the order which he seeks. It will
therefore be ordered under s.149(8) of the Bankruptcy Act that
the period at the expiration of which the objection entered on
12 May 1989 will lapse will be a period of 10 years commencing
on the date of bankruptcy. The effect of that order will be
that unless something is done about it, the bankruptcy will
not lapse until 14 July 1996.

I certify that this and the three preceding pages are a true copy of the reasons

for judgment herein of his

Honour Mr Justuce Pincus

_----

LX-Jwe-

Associate

Date 12. 5!A\y 199'