Re Estate of Richard Fyvie Mann and Thelma Rose Mann (Bankrupts) Mann, R.F. & Anor v Knight, D.W

[1992] FCA 1041

I I.

JUDGMENT No. .!.Q%!,.,..,/ l%%

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IN THE FEDERAL COURT OF AUSTRALIA	i
GENERAL DIVISION
BANKRUPTCY L)lSlnRICT OF THE	1

STATE OF OUEENSLAND NO. 862 of 1987 i. .

RE: ESTATE OF RICHARD FYVIE MANN

and THELMA ROSE MANN (Bankrupts)

RICHARD FYVIE MANN and THELMA ROSE

m

First Applicants

i

DESMOND WILLIAM KNIGHT l

Second Applicant

MINUTES OF ORDER

JUDGE W I N G ORDERS:	Cooper J.
WHERE MADE:	Brisbane
DATE OF ORDER:	1 December, 1992

, .

THE COURT ORDERS that the time prescribed by section m .

149(S)(1) of the Bankru~tcv Act 1966-1991 be abridged to

1 .

permit the bankrupt forthwith to apply in writing to the	I
trustee for early discharge from bankruptcy.

[,'

m:	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.  I .

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DTVISION

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BANKRUPTCY~DISTRICT OF	THE
STATE OF OUEENSLAND	No. 862 of 1987

RE: ESTATE OF RICHARD FYVIE MANN
and THELMA ROSE MANN (Bankrupts)

RICHARD FYVIE MANN and THELblA ROSE

m

First Auulicants

DESMOND WILLIAM KNIGHT

Second Applicant

C O W :	Cooper J.
PLACE :	Brisbane
DATE:	1 December, 1992

EXTEME'ORE 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 Bankru~tcv 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.      A t 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 bankrupts 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 bankrupts would have been entitled to discharge after five years at the latest, which period would have expired on 13 July, 1992. There are no, or very limited, transitional period provisions in the amending legislation to take account of persons in the position of the bankrupts.

The trustee had agreed to withdraw the objections in relation to each of the bankrupt applicants, but failed to do so by oversight prior to 1 July, 1992. As a result of that oversight, each of the bankrupts remains bankrupt and precluded by section 149(S)(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 Bankru~tcv Act to abridge the six month period

contained in section 149(5)(1).

As to the matter of the exercise of the discretion,
the bankrupts find themselves in the position where they

presently are through no fault of their own. The trustee had undertaken to withdraw the objections. But for the failure to withdraw the objections, each of the bankrupts would now be discharged from bankruptcy.

The application before me is not one to discharge them from bankruptcy, but merely to enable them to take the first step required by section 149(5)(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.

Date: 23 February, 1993

.I I . I

:I.\,(,,(, - 1 / < . ' , ( l ( # l I l l

Associate

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