Re Bontes, K.

[1991] FCA 47

NOT FOR DISTRIBUTION C A T C H W O R D S

M R U P T C X - application for discharge - bankrupt desiring to

perform community work free from stigma of bankruptcy - unable to obtain paid employment due to permanent disability - not considering any business venture in future - application not opposed - no reason of public interest and commercial morality why discharge ought not to be ordered - discharge ordered.

PE: KLAAS BONTES EX PARTE: KLAAS BONTES

PO. WB 535 OF 1983

FRENCH J.

PERTH

29 JANUARY 1991

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT	1
OF THE STATE OF	1
WESTERN AUSTRALIA	1	NO. WB 535 of 1983 RE: KLAAS BONTES

Bankrupt

EX PARTE: KLAAS BONTES

Applicant

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	29 January 1991
WHERE m:	Perth
THE COURT ORDERS THAT:

The bankrupt be discharged.

Note: Settlement and entry of Orders is dealt with

in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT	)
OF THE STATE OF	)
WESTERN AUSTRALIA	)	No. WB 535 of 1983
RE: KLAAS BONTES

Bankrupt

EX PARTE: KLAAS BONTES

Applicant

CORM:  FRENCH J.
29 January 1991

EX TEWORE REASONS FOR JUDGMENT

This is an application for discharge from bankruptcy by Klaas Bontes. M r Bontes has been made bankrupt on two occasions, the first on 14 September 1979 and the second on 9 August 1983. It is unnecessary for me to repeat the circumstances surrounding the bankruptcies as these were dealt with in a judgment on his application for discharge from each of them on 12 February 1987. At that time I commented, after reviewing the facts of the case, that both bankruptcies were

comparatively recent, the second having commenced just over	three years prior to the application. It was also then just
under five years after the bankrupt had been subjected to a significant criminal penalty for six offences against s.269 of the Bankru~tcv Act. I did not find his reasons for seeking discharge, in so far as they related to a desire to do community work free of apprehension about restrictions imposed by the Bankru~tcv Act, terribly convincing. But in so far as
he wished to be free of the stigma of bankruptcy, that was a
factor which, while not of itself sufficient to justify a discharge, was a relevant consideration.
There was then, as there is now, no opposition to the application, and the case became one in which the public interest and commercial morality were dominant considerations in determining its disposition. I came to the conclusion, in respect of the first bankruptcy, that the public interest would be protected if the applicant were given a suspended discharge conditional upon his continuing exclusion from commercial activity. I ordered then in the following terms affecting the first bankruptcy that:

1.    the bankrupt be discharged but the operation of the order be suspended subject to the following condition until 12 February 1989;

2.    the condition is that the bankrupt undertake to the Court not to carry on business on his own account or in partnership, execute any guarantee or hold office as a director or secretary of a company until 12 February 1992.

As I noted then, the effect of that order was that if the	undertaking were given then M r Bontes would be discharged from	his first bankruptcy in February 1989 but would be bound by
the condition until February 1992. AS to the second bankruptcy, which occurred on 9 August 1983, I concluded, by virtue of s.150(10), that no suspended discharge was possible.
I also concluded that it would be inappropriate to order a
discharge for that bankruptcy at a time when the first bankruptcy subsisted. No automatic discharge was possible, of course, in respect of the second bankruptcy, so it would be necessary, as I then pointed out, for Mr Bontes to re-apply for a discharge from that bankruptcy no earlier than two years from February 1987, when the discharge of the first bankruptcy became effectual. It is in respect of the second bankruptcy that he now re-applies for discharge.
A report has been filed by the trustee, Mr Robson, who I am informed is seriously ill and therefore unable to be present in Court today. But I have had the courtesy of assistance from his partner, Mr Melsom. The report, which is not disputed, indicates that the statement of affairs filed in this bankruptcy showed assets of $1,953 and liabilities of some $11,047, although proofs of debt came to $20,921.50. Realisations were $914.35. There were no unrealised assets of any value remaining. A first meeting of creditors was held in November 1983 and no public examination was held. The trustee accepts in his report, after reviewing the facts to which I referred in the earlier judgment, that the bankruptcy was
brought about primarily by the failure of a purchaser of a business from Mr Bontes to honour one of the full terms of the agreement of sale in relation to unpaid debts of the business
and also by Mr Bontes' inability to finance legal proceedings to effect recovery. The trustee indicates that he knows of no reason why the conduct of the bankrupt since the date of bankruptcy should be considered unsatisfactory and notes that no offences have been shown to have been committed by Mr Bontes during the course of the administration of this estate. There are no matters under sub-s.150(6) which would provide sufficient grounds for the refusal or suspension of an order of discharge in respect of this bankruptcy. Creditors have been notified of the application. No opposition to it has been filed.
In his affidavit in support of the application, Mr Bontes says that since October 1982 he has not received income other than sickness, and subsequently, invalid pension payments and has not been able to contribute toward payment of any debts. He is currently an invalid pensioner and because his disability is of a permanent nature, there is no likelihood that he will be able to obtain or accept remunerative employment in the future. He says that he is not in a position to consider any business or private venture, now or in the future, which could conceivably require that he apply for any credit or which would in any way lead to the possibility of a recurrence of the circumstances that led to his bankruptcy. In view of the state of his health and lack
bankruptcy he would not constitute any threat to society or be of future prospects, he considers that if discharged from his
likely to engage in any activity which would reflect adversely on a discharge decision. And of course the condition attaching to the suspension of the first bankruptcy continues to run until February 1992. Mr Bontes wants to be in a position to lead a normal life devoid of the stigma of being an undischarged bankrupt. In oral evidence, elaborating on his affidavit, Mr Bontes indicated that he does get involved
from time to time in voluntary work and wishes to be able to participate, as he is asked to do on occasions, in committee work. However, he feels apprehensive about that because of his position as a bankrupt.
I am not sure that I find that worry any more convincing now than I did when it was first ventilated in
1987, but I accept that he has a genuine apprehension in that
regard. In all the circumstances and having regard to the overriding criteria in this case of public interest and commercial morality, there is no reason why an order for discharge ought not to be made, and I will so order. The bankrupt will be discharged.

I certify that this and the preceding
four (4) pages are a true copy of the
Ex Tempore Reasons for Judgment of

his Honour Justice French.

Associate: mRctA/C& Date :

Kr K. Bontes appeared in person.

Mr P.M. Melsom appeared on behalf of the trustee in bankruptcy.

Date of Hearing: 29 January 1991 Date of Judgment: 29 January 1991