Re Davies, Douglas Ronald & Anor

IN THE FEDERAL COURT OF BUSTF!!XLIA

1 )

BANKRUPTCY DISTP.ICT 'THE STATE OF

I	No. 106 of 1583

)

NEW SOUTH WALES AND THE AUSTRALSN )

CAPITAL TE2HITORY'

)

RE: DOUGLAS RONALD DAVIES

JANN ELIZABETH DAVIES

JUDGE

Beaumont J.

DATE OF ORDER:

14th September 1983

. I

WHERE MADE:

Sydney

THE COUHT 0RDEF.S THILT:

1. Ob~ectlons

to competency upheld.

2. Applicatlons disrnlssed.

IN THE FEDERG COURT OF AUSTRALIA

) )

BANKRUPTCY DISTRICT 'THE STATE OF

)	No. 106 of 1983

NE55 SOUTH WALES AND THE AUSTRALIAN )

)

TERRITORY'

CAPITAL

)

RE: DOUGLAS RQNALD DAVIES

J A N N

ELIZABETH

DAVIES

CORaA:

BEAUMONT S.

REASONS FOR JUDGXEIENT

BERUMONT S.

On 22nd April 1983 each of the bankrupts in thls macter

made application for orders

of dlscharge pursuant to

5.150 of the

Bankruptcy7 Act, 1966 ( "the Act"). Each was made bankrupt on Z2nd

February 1983. When the matter first came before the Court, rne

Official Trustee took a prellmlnary polnt by way of an oblectlon

to the competency

the appllcatlons on the around that they

were premature.

I have now heard aruumenr: on the pomt and at

the conclusion of the argument

I indicated chat

I would upnold

the obgectlon but give reasons later

In the day.

Sectlon 150(1) of the Act provldes:

"150.

(1) A person who becomes, or has

before the commencement

of thls sub-section

become, a bankrupt may appl7 to the Court for

an order of discharge at any clme after

(a) his

publlc

examlnation

has been

concluded;

(b) the

trustee

has

notlfled

n l m

writmq, chat the trustee

does noc

Intend to make an applicatlon for nis

examlnatlon under sectlon

69: or

( c ) the evplration

of the period

of 12

months commencing on

the date of the

bankruptcy.

So far as para. (a) of 5.150

(1) 1 s concerned, the public

examinatlons have not been concluded

.. Examinatlons were held on

13th

April

1983

and.

then

adjourned

lndeflnlcely.

Furcher

examinatlons

were

held

September

1983

and

adjourned

generally. The applicants argued that, as

a matter of discretion

at	least, che Reglscrar should have concluded the examinatrons

elt,her ,on 13th April 1983 or on 9th September 1983.	Sectlon
69(5) of the Act provides:

" ( 5 ) The Reulstrar or a maglstrate nag -

(a) at any time adjourn the examrnatlon

the bankrupt elcher	CO	a fixed date	or
generally;

- (b) at any trme

ad~ourn

the examinatlon of

-.-

the bankrupt for further hearing before

the Court;

the

examlnation

the

bankrupt.

It is clear that the power In facc exerclsed

by the

Reglstrar at che conclusion of both sets

of examlnatlons was Char:

3 .

conferred by s.69(5)(a).

It may conceivably be open to the

applicants to persuade the Registrar to exerclse his power under

s.69(5)(c) at this stage but until, by some process or otherwise,

the Registrar in fact concludes the examinatmns, the.provisions

of s.l50(l)(a) have not been satlsfied.

It is common uround that the provisions of s.l50(l)(b)

and

(c)

have not been satisfied in the present case: The

argument centred around the provisions

of para. (a) thereof. For

the reasons I have given, in the absence

of an order under

s.69(5)(c),

the

public

examinations

cannot

be regarded as

concluded.

follows

that

the

provisions

s.150(1) have

therefore

not

been

complied

with

and

the

applications

are

therefore premature.

In the circumstances nothing turns in this

case upon the distinction adverted to in

Re Deane (1947)

A.B.C.

122 at p.123, namely whether an application

is made upon

the filing

the application or at the later date when the

bankrupt appears in court and

requests‘an order

of discharge. On

either test, these appllcations are premature.

I therefore

propose

uphold

the

objection

competency and to dismiss both applicatlons.

In the Federal Court of Australia, Bankruptcy District, the matter of Re Davies, Douglas Ronald and Anor was heard before Beaumont J. The applicants, Douglas Ronald Davies and Jann Elizabeth Davies, sought discharge from bankruptcy under section 150 of the Bankruptcy Act 1966. The Official Trustee objected to the competency of the applications on the grounds that they were premature. The central issue was whether the applicants' discharge applications were premature as they had not yet fulfilled the requirements set forth in section 150(1) of the Act.

The court held that the applications were indeed premature. The public examinations of the bankrupts, which are a prerequisite for discharge under section 150(1)(a), had not been concluded. The examinations were adjourned indefinitely on 13 April 1983 and generally on 9 September 1983. The applicants argued that the Registrar should have concluded the examinations, but the court found that the Registrar had the discretion to adjourn the examinations under section 69(5) of the Act, and this discretion was exercised in this case. Consequently, the public examinations were not concluded, and the statutory requirements for discharge had not been met.

Based on the reasoning above, the court upheld the objection to competency and dismissed both applications. Consequently, the objections to competency were upheld and the applications were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established