Re Estate of John Anthony Gordon Gordon, J.A.
[1992] FCA 1038
•1 Dec 1992
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
| I | BANKRUPTCY DISTRICT OF THE | |
|
RE: ESTATE OF JOHN ANTHONY GORDON
(a Bankrupt)
BETWEEN:
JOHN ANTHONY GORDON
First Applicant
m: DESMOND WILLIAM KNIGHT
Second Auvlicant
MINUTES OF ORDER
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I
JUDGE MAKING ORDERS: Cooper J.
| I I | WHERE | MADE: | Brisbane |
| I | DATE OF ORDER: |
| THE COURT ORDERS that the time prescribed by section 149(S)(1) of the Bankruutcv Act 1966-1991 be abridged to permit the bankrupt forthwith to apply in writing to the trustee for early discharge from bankruptcy. |
| I | I |
23 FEB 1993
EDERAL COURT 0 6
AUSTRALIA PRINCIPAL
REGISTH*
a e : Settlement and entry of orders is dealt with in Rule
l
| I | 124 of the Bankruptcy Rules. |
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE
STATE OF OUEENSLAND No. 157 of 1989 RE: ESTATE OF JOHN ANTHONY GORDON
(a Bankrupt)
BETWEEN :
JOHN ANTHONY GORDON
First Ap~licant
m: DESMOND WILLIAM KNIGHT
Second Applicant
CORAM: Cooper J. PLACE : Brisbane m: 1 December, 1992 EXTEMPORE REASONS FOR JUDGMENT
In this matter there is an application bought by the bankrupt and Desmond William Knight, the trustee of the bankrupt's estate, for an abridgment of the period of six months specified in section 149(S)(1) of the Bankruptcv Act.
Relevantly section 149(S)(1) provides that any time
after six months from :- (a)
The date on which a bankrupt filed his or her statement of affairs, or
(b)
The date of commencement of the section, whichever is the latter,
the bankrupt may apply in writing to the trustee for early
discharge from the bankruptcy.Section 149(S)(1) came into operation on 1 July 1992. At that time the trustee had lodged an objection to the applicants' early discharge from bankruptcy.
Each objection remained in force until the coming into operation of the amending Act, and by virtue of section 54(1) of the amending Act, the objections lapsed. The bankrupt would, but for the objection of the trustee, have been entitled to early discharge at the expiration of three years in the normal way. The bankrupt would have been entitled to discharge after five years at the latest, which period would have expired on 24 February, 1994. There are no, or very limited, transitional period provisions in the amending legislation to take account of a person in the position of the bankrupt.
The trustee had agreed to withdraw the objections in relation to the bankrupt applicant, but failed to do so by oversight prior to 1 July, 1992. As a result of that oversight, the applicant bankrupt remains bankrupt and precluded by section 149(5)(1) from bringing an application to the trustee until six months has expired from the commencement
of the amendment on 1 July, 1992. I am satisfied that I have power under section 33(l)(c) of the Bankruptcy Act to abridge the six month period contained in section 149(5)(1).
As to the matter of the exercise of the discretion, the applicant bankrupt finds himself in the position where he presently is through no fault of his own. The trustee had undertaken to withdraw the objections. But for the failure to withdraw the objections, the bankrupt would now be discharged from bankruptcy.
The application before me is not one to discharge him from bankruptcy, but merely to enable him to take the first step required by section 149(S)(1) towards seeking from the trustee an early discharge from bankruptcy.
THE COURT ORDERS:
That the time prescribed by section 149(S)(1) of the Bankruptcv Act 1966-1991 be abridged to permit the bankrupt forthwith to apply in writing to the trustee for early discharge from bankruptcy.
I certify that this and the two (2)
preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.
Date: 23 February, 1993 - j l , ~ L \ r ~ r 111 i ,cJ; i i t c l iu Associate
Solicitor for the Applicant: Mr. S.C. Russell of Sly & Weigall Cannan & Peterson Date of Hearing: 1 December, 1992
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