Re John, R. Hassard

[1987] FCA 355

NOT FOR DISTRIBUTION

355.

IN THE FEDERAL COURT OF AUSTRALIA 1

)

EXERCISING FEDERAL JURISDICTION	)	No. 125 of 1987
)
IN BANKRUPTCY	)

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

RE: JOHN R. HASSARD A Bankrupt

m:	NORTHROP J.
m:	29 APRIL 1987

W: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

I propose to grant the application for an order

annulling the bankruptcy but, in so doing, make the comment

that the matter has been presented in a most unsatisfactory

manner by the solicitor acting for the bankrupt. In the

first place, there was no affidavit in support of the

appllcation under paragraph 154(l)(b) of the Bankruptcy Act

1966 a6 is requlred by rule 103 of the Bankruptcy Rules and

there was no evidence at all that the debts of the bankrupt

have been paid in full. Under normal circumstances an

application like this, on comlng before the Court, would be

dismissed. I make no comment on whether the bankrupt W-

have any cause of action based on negligence of hls

/' . I

for any damages resultlng from the dismissal of

application. In the circumstances, I am prepared to eacept T-J .i

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the report of the Offlclal Trustee as discloslng the material

upon whlch the application is based but even here the report

draws attention to two particular matters; one, that a debt

owing as at the date of bankruptcy was not disclosed by the

bankrupt being a debt in the sum of $2,567 owing to A.C.I.

Australia Limited trading as Stegbar. The report goes on and

says : -

"I understand that evidence that the debt has been

settled will be produced at the hearing."

Further, the report contains a paragraph as follows:-

"The conduct of the bankrupt since date of

bankruptcy has not been entirely satisfactory. He should explaln to the Court why he omitted to disclose in his Statement of Affairs a provable

debt of $2,567. ''

Desplte those two very clear references to matters

contained in the report of the Official Trustee, the

solicitor for the bankrupt did not ensure that his client be

present in Court to give evidence on those two matters. The

solicitor himself gave evidence that actlng on advice given

to him, Mr. Hassard paid that debt to the solicitors for the

creditor and produced a letter dated 21 April 1987 from a

firm of solicitors addressed to the solicltor for the debtor

reading as follows:-

"Stegbar v. J . R . Hassard

We have been requested	by	Mr. Hassard to forward
the receipt to you.

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There was enclosed a receipt whlch appears to be a receipt

initlally drawn In the name of Wlsewoulds, presumably a firm

of sollcitors well known in the city of Melbourne. In one

spot that name appears to have been partially blacked out

wlth the name of the solicltor for the creditor written over

it, but in the other place the blacking out does not affect the Wisewoulds' name whatsoever. The receipt is in the form: -

"Received by cheque from J.R. Hassard re Stegbar the

sum of $2,567 and subject to clearance."

The receipt is dated 16 April 1987.

There is also before the Court, an affidavit sworn

on 2 April 1987 by the solicitor for the bankrupt containing materlal to the effect that the bankrupt has entered Into a

contract of sale for the purchase of a property at

Strathmore. The matter cannot go ahead while the bankruptcy

is in existence because of the need of the bankrupt to borrow

money and that interest at a higher rate is liable to be paid

as is also the possibility of the deposit being forfeited.

The affidavit was filed in support of an application to have

the return date of the application brought forward from 12

May 1987, which was the initlal date for the hearing of	the
application.

I mention all these matters to illustrate the

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completely unsatlsfactory standard of the presentatlon of

thls case, but in the clrcumstances I am prepared to grant

the application and havlng regard to the report of the

Official Trustee, which I am entitled to look at under rule

57(3) of the Bankruptcy Rules, I will make the order sought.

The order is that the bankruptcy be annulled.