Re Byrne - [1989] TASSC 17

Serial No 10/1989
List "A"

CITATION: Re Byrne; Ex Parte Official Trustee [1989] TASSC 17; A10/1989

PARTIES: RE BYRNE; EX PARTE OFFICIAL TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  29/1984
DELIVERED ON:  23 February 1989
JUDGMENT OF:  Crawford J

Judgment Number: A10/1989
Number of paragraphs: 45

Serial No 10/1989
List "A"
File No 29/1984

RE BYRNE; EX PARTE OFFICIAL TRUSTEE

REASONS FOR JUDGMENT CRAWFORD J

23 February 1989

The applicant, the Official Trustee in Bankruptcy, is the trustee of the bankrupt estate of the respondent, Terence William Byrne. The application has been made under s149(12) of the Bankruptcy Act 1966 for a direction that the bankrupt shall not be discharged from bankruptcy by virtue of the section.

The bankrupt became a bankrupt by a sequestration order made on 27 February 1984 on the petition of a creditor, the act of bankruptcy being failure to comply with the requirements of a Bankruptcy Notice. In the normal course of events he would have been automatically discharged from bankruptcy on 27 February 1987, that is upon the expiration of 3 years from the date of bankruptcy, by virtue of s149(1). However, on 22 January 1987 a Notice of Objection to Discharge dated 20 January 1987 was entered on behalf of the Official Trustee by filing with the Registrar of Bankruptcy, pursuant to s149(3)(c). Its effect, as held by me in Official Trustee in Bankruptcy v Byrne 41989, was to extend the period of the bankruptcy to 27 February 1989 (see s149(7)(a)). If the application now before the court is successful the result will be that the respondent will remain a bankrupt, with no entitlement to automatic discharge, until his discharge is ordered by a court at some future time under s150.

The bankrupt appeared before the court by counsel to argue that he was discharged on 27 February 1987 by virtue of the automatic provisions in s149(1), the basis of the argument being that the Notice of Objection to Discharge was ineffective. On 13 February 1989 I ruled that the Notice effectively extended the period of bankruptcy to 27 February 1989 and that this application was properly before the court. The question of costs on the preliminary point was reserved. The further hearing of the application was listed for 16 February 1989, on which day the bankrupt's counsel appeared to advise that he was instructed to take no further part in the hearing and he then withdrew. The hearing therefore proceeded without the bankrupt or his counsel being present.

The relevant provisions of s149 are:–
"(12) The Court may, at any time before the discharge of a bankrupt, on the application of the Registrar, the Inspector–General, the trustee or a creditor, direct that the bankrupt shall not be discharged from bankruptcy by virtue of this section.
(13) In deciding whether to make an order under sub–section (12), the Court shall take into account such matters (if any) as are prescribed for the purposes of this sub–section."
The matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] TASSC 17
Decision Date: 23 February 1989

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the Official Trustee in Bankruptcy applied for an order that the respondent, Terence William Byrne, shall not be discharged from bankruptcy by virtue of section 149 of the Bankruptcy Act 1966. The application was made under s149(12) of the Act. The respondent had previously been declared bankrupt and had been discharged in 1971, but had been declared bankrupt again in 1984. The automatic discharge from bankruptcy, which would have occurred three years after the 1984 declaration, was extended to five years by a Notice of Objection to Discharge filed by the Official Trustee. The respondent appeared in court to argue that the Notice was ineffective and that he should be discharged. However, the respondent withdrew from the hearing and the court proceeded without his presence. The court considered the relevant provisions of the Act and the evidence presented, which included affidavits and transcripts of the respondent's public examination. The evidence showed that the respondent had not cooperated in the administration of his estate and had failed to provide necessary information and documents. The court found that the respondent's lack of cooperation had hindered the Official Trustee's investigations and that his conduct before and after the bankruptcy was unsatisfactory. The court concluded that the respondent should not be discharged from bankruptcy and made an order to that effect. The court reserved the question of costs.

Orders