Re Harris, G.

[1989] FCA 350

IN THE FEDERAL COURT OF AUSTRALIA	1
1 QLD E137 of 1989
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF QUEENSLAND	)

RE:  GARRY HARRIS

EX PARTE: THE BANKRUPT

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	19 MAY 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.     the bankruptcy be annulled.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD E137 of 1989
BANKRUPTCY DISTRICT OF THE SOUTHERN
DISTRICT OF THE STATE OF QUEENSLAND	)

RE:  GARY HARRIS

(Debtor)

EX PARTE:  THE BANKRUPT

PINCUS J. 19 MAY 1989

EX TEMPORE REASONS FOR JUDGMENT

This is an application for annulment of a bankruptcy. ~t appears that the debts have not been paid in that one of the debts remains unpaid, although it is said that there is an agreement relating to it. The debt in question is that referred to in the third paragraph of Mr Chittenden's affidavit filed today, owed to Mobil Australia Limited. Although the matter comes close to being caught by s.l54(1)(b) of the Bankruptcy Act 1966,

it is not cpught by that provision.

Mr Chittenden, the applicant's solicitor, says that the sequestration order ought not to have been made. The authorities show that that question is to be considered objectively, that is, having regard to the facts as they are presently known to the Court, not to the facts as they were placed before the Court in the first instance. Those authorities are mentioned in the recent

decision of Mr Justice Gummow in Re Ditfort (1989) 83 A.L.R. 2 6 5

and I propose to follow them. It appears from the information presently before the Court, which was not before the Court at the time when the sequestration order was made, that the debtor, in fact, did have no notice of the adjourned date, although the Court's intention was he should have such notice.

The error seems to have been made, one suspects, in the solicitor's office, because the affidavit which was filed says notice was given on 20 February, which is the very date of the

h s ~ i i i t g , atid ~ i t e afzidavir: goes on to say that the notice would

have reached the debtor on 17 February whi-h makes no sense. Therefore, on the ground I have mentioned, that the facts presently before the Court show that the debtor had no notice of the hearing, the Court has a discretion to annul the bankruptcy. As Mr Eleftheriou has helpfully pointed out, the Court could also act under s.37, but it seems to me appropriate to make the order sought by Mr Chittenden, which is that the bankruptcy be annulled, and I make that order.

I certify that thia and the on. pr.c.ding p.9. e r .

His Honour M r Juetic. Pincus

a true copy of the rmmsona for judgnmnt herain of

Associate