Re Estate of Lesley James Nice Nice, L.J. v Knight, D.W

[1992] FCA 1039

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1037 /(??L ;

JUDGMENT No. ........ ........ .. ... ,. .,,,. ,

IN THE FEDERAL COIlRT OF AIJSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE

STATE OF OUEENSLAND No. 816 of 1989

RE: ESTATE OF LESLEY JAMES NICE

(a Bankrupt)

BETWEEN:

LESLEY JAMES NICE

First Applicant

AND :  DESMOND WILLIAM KNIGHT

Second Ap~licant

MINUTES OF ORDER

JUDGE MAKING ORDER:  Cooper J.

!	WHERE MADE:	Brisbane
DATE OF ORDER:	1 December, 1992

I THE COURT ORDERS that the time prescribed by section 149(S)(1) of the Bankruptcy Act 1966-1991 be abridged to permit the bankrupt forthwith to apply in writing to the trustee for early discharge from bankruptcy.

124 of the Bankruptcy Rules.

Settlement and entry of orders is dealt with in Rule

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVTSION

BANKRUPTCY DISTRICT OF THE

STATE OF OUEENSLAND No. 816 of 1989

RE: ESTATE OF LESLEY JAMES NICE

(a Bankrupt)

BETWEEN:

LESLEY JAMES NICE

First Applicant

AND_:  DESMOND WILLIAM KNIGHT

Second Applicant

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(5)(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 18 September, 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

of the amendment on 1 July, 1992. the trustee until six months has expired from the commencement I am satisfied that I have power under section

33(l)(c) of the Bankru~tcv Act to abridge the six month period

contained in section 149(S)(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 Bankru~tcv 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.

- / < ( v ' ( & L t t ! t ,

Date:  23 February, 1993 ., . ((L l l l3 "

Associate

Solicitor for the Applicant:	Mr. S.C. Russell of Sly h Weigall Cannan & Peterson
Date of Hearing:	1 December, 1992