Re Davies, Douglas Ronald & Anor

[1983] FCA 234

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 )
l
CAPITAL TE2HITORY'	)

RE: DOUGLAS RONALD DAVIES

JANN ELIZABETH DAVIES

JUDGE : Beaumont J.

DATE OF ORDER: 14th September 1983

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WHERE MADE: Sydney

THE COUHT 0RDEF.S THILT:

1. Ob~ectlons to competency upheld.

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2. Applicatlons disrnlssed.

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IN THE FEDERG COURT OF AUSTRALIA	) )
BANKRUPTCY DISTRICT 'THE STATE OF	) No. 106 of 1983
1
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 of 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

2.

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 in

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. 'I

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 on 9 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 of

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; or

(c) conclude the examlnation of the

bankrupt. 'I

It is clear that the power In facc exerclsed by the

Reglstrar at che conclusion of both sets of examlnatlons was Char:

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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. It follows that the provisions of 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) 14

A.B.C. 122 at p.123, namely whether an application is made upon

the filing of 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 to uphold the objection to

competency and to dismiss both applicatlons.