Re Hall, E.A. (also known as Sheahan, E.A.) v Ex parte Hall, E.A

[1987] FCA 659

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I N THE FEDERAL COURT 1 NOT INTENDED FOR GENERAL DISTRIBUTION

O F	A U S T R A L I A	1
G E N E R A L	D I V I S I O N	1
B A V K R U P T C Y	D I S T R I C T	1

OF THE STATE or )

WESTERN AUSTRALIA )

NO. 239 OF 1 9 8 2

RE:  EDWIN ALAN HALL

A l s o known a s EDWIN ALAN SHEAHAN

B a n k r u p t

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EX PARTE: EDWIN ALAN HALL :. ,

A l s o k n o w n a s EDWIN ALAN SHEAHAN

A p p l i c a n t

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JUDGE	MAKING	ORDER:	FRENCH	J.
DATE OF	ORDER:	2 3	November	1987

WHERE MADE :  PERTH

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THE COURT ORDERS THAT:

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1. The b a n k r u p t is discharged .

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Note:  Set t lement and e n t r y of orders 1s d e a l t w i t h i n

h ,:

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R u l e 124 of t h e B a n k r u p t c y R u l e s . I. -

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I N THE FEDERAL COURT ) NOT INTENDED FOR GENERAL DISTRIBUTION

OF	A U S T R A L I A	1
G E N E R A L	D I V I S I O N	)
B A N K R U P T C Y	D I S T R I C T	)

OF T H E S T A T E OF )

WESTERN AUSTFALTA )

NO. 2 0 5 OF 1 9 8 4

RE:  EDWIN AJ-AN HALL

A l s o k n o w n a s EDWIN ALAN SHEAHAW

B a n k r u p t

EX PARTE:  EDWIN ALAN HALL

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A l s o known a s EDWIN ALAN SHEAHAN

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A p p l i c a n t

JUDGE	MAKING	ORDER:	FRENCH J.
DATE	OF	ORDER:	2 3 November 1 9 8 7

WHERE MADE :  PERT11

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THE COURT ORDERS THAT:

1. The b a n k r u p t 1s discharged .

Note:  S e t t l e m e n t and e n t r y of orders is d e a l t w i t h i n

R u l e 1 2 4 of t h e B a n k r u p t c y R u l e s .

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IN THE FEDERAL COURT	NOT INTENDED FOR GENERAL DISTRIBUTION
OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT	1
OF THE STATE OF	)
I.?ESTERN AUSTRALIA	)

NO. 239 OF 1982 NO. 205 OF 1984

RE: EDWIN ALAN HALL

Also known as EDWIN ALAN SHEAHAN

Bankrupt

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EX PARTE: EDWIN ALAN HALL

Also known as EDWIN ALAN SHEAHAN

Appllcant

CORAM:  FRENCH J .
23 November 1987

EX TEMPORE REASONS FOR JUDGMENT

These are two applicatlons for discharge from bankruptcy

by Edwin Alan Hall. Mr Hall first became bankrupt on 25 May 1982

on his own petltion. In the ordinary course he would have been

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discharged from that bankruptcy by force of s.149 of the

Bankruptcy Act 1966 on 25 May 1985. I ..

However, he agaln filed a petltlon and became bankrupt ..

for a second time on 10 April 1984.

He filed a third petltion in Queensland on 24 April 1986

although no application is made in relation to that bankruptcy.

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The effect of sub-S. 149(3) 1s that he wlll not be

dlscharged from bankruptcy by effluxion of time as he has, since

the date of bankruptcy, again become a bankrupt. So to secure

dlschargc from the 1952 and 1984 bankruptcles, he makes

appllcation to this court under s.150 of the Act.

The clrcumstances leading up to the bankrupty of 1982 are outllned in the Official Trustee's report whlch lndlcates that	, -
at the tlme he flled hls petltlon Hall's statement of affairs
disclosed assets of $244.00 and liabilities of $6,921.00.	The

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principal liability arose out of a deficiency on the surrender of

a motor vehicle whlch	was subject to hire	purchase.	Proofs of
debt totalllng $2,154.00 were	recelved	In	the estate.

Realisations totalled $100.00, this sum being by way of

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I contrlbution from Mr Hall.

Insufflcient funds have been recelved to enable payment

of official fees and costs of administration in full and there are

not sufficient funds ~n the estate to enable payment of a

dividend.

Mr Hall is and has been an invalid pensioner for the

past 17 years.

At the tlme he flrst became bankrupt, he was aged 41

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years, was separated from his wife and was living in a de facto

relationship with a >lrs Rlchards, who is also a bankrupt.

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He and his de facto, who recelved a wife's allowance,

pooled their income to meet llving expenses for themselves and the two children of her former marrlage, then aged 4 and 6 years respectively.

In December 1932 they marrled and they have lived

together as man and wlfe since that time.

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Shortly after January 1981,	having been released from	I .
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prison followlng his convictlon for lmposltion under the Crimes Act which arose from, ~t appears, the dual receipt of unemployment bencflts and an invalld pension, the bankrupt entered Into an agreement to purchase a motor vehicle under hire purchase through General Motors Acceptance Corporation and, in addition, commenced utillzlng Rankcard facilities wlth the Rural & Industrles Bank.

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He fell behind in hls payments with both lnstitutions - ..

and they commenced recovery action. Accordlng to the Official

Trustee, the motor vehicle was repossessed, although Mr Hall says -

he surrendered ~ t . In any event, it was sold resulting in a

deficiency of $2,140.00.

In relatlon to the Bankcard debt, there was a total of I

$321.00 on whlch he was summonsed by the bank.

In February 1982 he and Elrs Richards jointly entered

into hlre purchase agreements to purchase various items of

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household furniture for $1,917.00 with monthly repayments of

$48.36. Accordlng to Hall, some of these commitments were made by

his then de facto and he found himself In a posltion where he had

to sign the papers and became bound also by the agreements.

In any event, he was unable to comply with demands for

payment of the outstandlng debts and filed hls petltlon.

In the Official Trustee's report in relation to this

bankruptcy, it 1s accepted that its causes were debts arising from Ilall's previous marriage and those Incurred by his de facto wife. over-use of credit is seen as a contrlbuting factor and, in my

oplnion, on the materials, ~t would appear to have been the

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dominant factor.

There 1s nothlng in his conduct prior to the date of

bankruptcy, and relevant to the bankruptcy, which was other than	!
satlsfactory although, of course, he had, in 1980, been charged with and convicted of imposltlon.

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There are no	matters of the kind specified under	I _
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sub-s.150(6) whlch would provide sufficient reason for the	refusal
or suspension of an order of	discharge.

Creditors have been notified of the fact of the

application.

I n r e l a t l o n t o t h e b a n k r u p t c y oE 1 9 3 4 , t h e O f f l c l a l

T r u s t e e ’ s	r e p o r t	i n d i c a t e s	t h a t	aEter	h i s	i n l t l a l	b a n k r u p t c y	I n
Hay	1 9 8 2 ,	H a l l ’ s	pension	was	reduced	by	t h e Department	oE Social

S e c u r l t y i n a n e n d e a v o u r t o r e c o v e r t h e o v e r p a y m e n t of some

$ 4 , 8 8 7 . 0 0 t h a t had been made t o h i m a r l s i n q o u t o f t h e e v e n t s

l e a d l n g t o h l s conv ic t lon for m p o s l t l o n .

T h e D e p a r t m e n t s o u g h t t o r e c o u p t h e loss and h e came

u n d e r p r e s s u r e t o liquidate t h e l l a b i l i t y . However, n o t b e i n g I n

a p o s i t l o n t o d o so, 1t is s a i d , h e a g a i n f i l e d h i s p e t l t r o n on 10

A p r i l 1 9 8 4 e v e n t h o u g h t h e soclal s e c u r l t y d e b t r e l a t e d t o h l s

f i r s t b a n k r u p t c y .

His statement a f f a i r s o f t h a t a t time d i s c l o s e d

l i a b l l i t i e s t o t a l l i n g $ 1 1 , 5 5 9 . 0 0 i n r e s p e c t o f t h e p e r i o d 1 9 8 0 t o

1 9 8 4 . The p r l n c i p a l u n s e c u r e d c r e d i t o r was t h e D e p a r t m e n t oE

%

S o c i a l S e c u r l t y f o r $ 1 0 , 0 0 0 . 0 0 .

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T h e O f f i c i a l T r u s t e e n o t e s t h a t t h i s d e b t , w h l c h r e l a t e d

t o an overpayment of unemployment benef l t s be tween June 1978 and

A p r i l 1 9 8 0 , s h o u l d h a v e b e e n i n c l u d e d i n t he 1982 bankrup tcy and

t h a t t h e c l a i m l o d g e d b y t h e D e p a r t m e n t i n t h l s r e g a r d t o t a l s

$4 ,619 .00 .

T h e o n l y o t h e r p r o o f o f d e b t r e c e i v e d i n r e l a t i o n t o

t h a t ,	i t	1s s a l d ,	1s t h e d e f i c l e n c y	i n	t h e	b a n k r u p t	e s t a t e	of
1982,	be	ing	$2 ,184 .00 ,	making	a	t o t a l	I n t h i s es ta te of	$6 ,803 .00 .

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Realisations totalled $ 2 0 . 0 0 . Plalnly there are lnsufficient

funds to enable the payment of offlcial fees and costs of

administration or payment of any divldend.

The Off iclal Trustee comments that there appears to have

I	been no reason why the bankrupt should have filed the second petitlon as his total debts not including the social securlty
claim, amounted to $1,559.00 only and should have been wlthin his
means to servlce.

After the 1 9 8 4 petition was Elled, Hall and hls family

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travelled to Queensland where they were intending to take up permanent resldence, but while there he again filed a petition, this time on 2 4 April 1 9 8 6 In which he disclosed liabilities of $1,257.00 with no assets.

He and his family returned to Western Australia to live

in	August	1 9 8 6 .
Agaln, there is no suggestlon of conduct, prior to the

date of bankruptcy, which was unsatisfactory and no suggestion

that any of	the matters specified under	sub-s.	1 5 0 ( 6 ) have been
made out.

Creditors have agaln been notified of the fact of this

application.

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rblr Hall blamed hls bankruptcy on hls lnabllity to cupe	!
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on his low Income.

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It seems to me that to some extent hls difflculties arlse Erom his rather cavaller resort to the bankruptcy process	I
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and that he would be well odvlsed In future before rushing in with
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a petition, to seek some advice, whether from the Legal Ald i

Commisslon. the Citlzens	Advice	Bureau,	or some	other	sultahle	+.
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agency, as to	whether	In fact a petition 1s necessary.	t .
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Qulte apart

from the

disabilitles

that

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imposes upon

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hlm, it imposes what may be unnecessary costs and burdens on the

public administration of bankruptcy.

blow, it seems to me that there is, in this case, no real reason in principle why these rather small bankruptcies should be	, -
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kept on foot. Mr Hall and hls famlly are presently renting a Homeswest house in Kellerberrin and hope to purchase It in due course. They w11l not be able to purchase it until he has been

discharged from the Oueensland bankruptcy and his automatic

discharge in that regard would not arise untll 1989, assuming that

he IS, In the meantlme, discharged from the prior bankruptcies.

In my opinion, It is appropriate to make orders

discharging him from these bankruptcies.

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Now, I have t h e power under s u b s . 1 5 0 ( 9 ) L 0 r e f u s e L 0

make a n o r d e r o f d i s c h a r g e , t o make an o r d e r of d i s c h a r g e or to

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m a k e	a n	o r d e r	o f	d i s c h a r g e	b u t	s u s p e n d	~t	u n c o n d i t i o n a l l y	o	r	L .
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s u b - ~ e c t t o c o n d i t l o n s . I n l t i a l l y , I t h o u g h t t h a t I o u g h t t o

d l s c h a r g e hlm u n c o n d l t l o n a l l y I n r e s p e c t oE t h e 1 9 8 2 b a n k r u p t c y , i

b u t s u s p e n d t h e d i s c h a r g e i n r e s p e c t of t h e 1984 bankruptcy and

lmpose a c o n d i t i o n I n r e s p e c t of t h e o b t a i n l n g o f c r e d i t .

However, h a v l n g r e g a r d to t h e Queens land bankrup tcy and

t h e	controls	t h a t	t h a t	i m p o s e s	I n any	e v e n t ,	t h e b e t t e r	course	I
t h i n k ,	i s	t o m a k e	a n	u n c o n d i t i o n a l	d i s c h a r g e	I n	r e g a r d	t o	t h e

s econd bankrup tcy a l so . I d o n o t t h i n k t h e r e is a n y r e a s o n of

p u b l i c i n t e re s t or commercial m o r a l i t y t h a t mi l l ta tes a g a i n s t i t .

I n d e e d , l t 1s a b a n k r u p t c y w h i c h p r o b a b l y o u g h t n e v e r h a v e I,

o c c u r r e d

h a v i n g

r e g a r d

t o

t h e

small

a m o u n t

o

f

t o t a l

d e b t s

w h i c h

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e

h a d

i n c u r r e d

a t t h e

time

t h a t

h

e

f i l e d

t h a t

p e t i t i o n .

So

he

w i l l

t:.

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b e	s u b j e c t	t o t h e	c o n s t r a i n t s	o n	t h e	b a n k r u p t c y	t h a t	s u b s i s t s
a r i s i n g o u t o f	t h e	f i l l n g	of	t h e	p e t i t i o n	i n	t h e	Q u e e n s l a n d

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R e g i s t r y .

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h e

s e e k s

d i s c h a r g e

f r o m

t h a t

b e f o r e

t h e

e x p i r y

o f

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y e a r s s u c h a p p l i c a t i o n w i l l b e d e a l t w i t h o n its merits a t t h e

time. : ..

T h e o r d e r t h a t I w i l l m a k e i n r e s p e c t o f e a c h of t h e

b a n k r u p t c i e s is t h a t h e b e d l s c h a r g e d from them.

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I c e r t i f y tha t t h e p r e c e d i n g

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e i g h t	(8) p a g e s	a r e	a	t r u e copy of	t h e
R e a s o n s	f o r	J u d g m e n t	o f	H I S	Honour

J u s t ice F r e n c h .

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M r E . A . Hall a p p e a r e d on h i s own b e h a l f .

Mr F. D. O'Driscoll a p p e a r e d f o r t h e O f f i c i a l Trustee.

Date of Hear ing : 2 3 November 1987

Date o f Judgmen t : 23 November 1987