Re Estate of John Anthony Gordon Gordon, J.A.

[1992] FCA 1038

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

I	BANKRUPTCY DISTRICT OF THE
STATE OF OUEENSLAND No. 157 of 1989

RE: ESTATE OF JOHN ANTHONY GORDON

(a Bankrupt)

BETWEEN:

JOHN ANTHONY GORDON

First Applicant

m:  DESMOND WILLIAM KNIGHT

Second Auvlicant

MINUTES OF ORDER

i
I

JUDGE MAKING ORDERS:  Cooper J.

I I WHERE MADE: Brisbane
1 December, 1992

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