Re Kirton, Alan Douglas Ex Parte Kirton, Alan Douglas

[1983] FCA 132

Re: ALAN DOUGLAS KIRTON
Ex parte: THE ABOVENAMED
Re: ALAN DOUGLAS KIRTON
Ex parte: FRIEDA ALWINE ANNA MANNIGEL
No. Qld.289 of 1982
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Fitzgerald J.

CATCHWORDS

BANKRUPTCY - application for discharge from bankruptcy - unopposed - discharge and variation of earlier orders.

Bankruptcy Act, ss. 37(1), 150

HEARING

BRISBANE

#DATE 20:5:1983

ORDER

1. Orders (1) and (2) made on 12 October 1982 be discharged.

2. Order (3) made on 12 October 1982 be varied to permit and provide for the adjournment to 20 May 1983 of the bankrupt's application for a discharge.

3. A discharge be granted to the bankrupt.

4. No order as to costs for any party.

JUDGE1

An order sequestrating the bankrupt's estate was made by Wanstall CJ in the Supreme Court of Queensland exercising federal jurisdiction in bankruptcy on 10 June 1981 on the petition of Mrs Frieda Alwine Mannigel.

The public examination of the bankruptcy under s.69 of the Bankruptcy Act 1966 ("the Act") commenced at 10.30 a.m. on 16 October 1981 and, little more than an hour later, was adjourned by the Registrar to enable the bankrupt to obtain some legal advice. On 29 January 1982, the Registrar ordered that the public examination be concluded without any further attendance before him by the bankrupt. The petitioning creditor was represented by counsel at the adjourned examination but, presumably through an oversight, was not notified before the Registrar made that order. She was notified in February 1982 but took no action at that time.

On 23 April 1982, less than one year after the sequestration order in respect of his estate was made, the bankrupt applied under section 150 of the Act for an order of discharge. That application came before me for hearing. It was opposed by Mrs Mannigel, who was represented by counsel. In addition, Mrs Mannigel sought summonses under s.81 of the Act directed to a number of persons, one of whom was the bankrupt's wife, Mrs Diane Eileen Kirton, requiring those persons to attend before the Registrar and give evidence in respect of various matters. I reserved judgment on 17 September 1982.

On 12 October 1982 the following orders were made:

"1. Mrs Kirton, wife of the bankrupt, be summoned to attend before the Registrar on a date and at a time and place fixed by the Registrar prior to the issue of the summons, to give evidence concerning and to produce any books, whether or not in existence at the time the bankrupt became a bankrupt, in her custody or power relating to her association with Concept Service Mart (Qld) Pty Ltd and the interest in that company held in her name and the circumstances surrounding her acquisition of that interest and the bankrupt's involvement therein and more generally what, if any, connection exists between her, the bankrupt and/or Concept Service Mart (Qld) Pty Ltd with respect to respective positions of herself and the bankrupt with that company and the interest held in her name in that company, but limited to information concerning the bankrupt or his trade dealings, property or affairs in accordance with section 81 of the Bankruptcy Act 1966.

2. Such examination be held as soon as possible. 3(a) The further hearing of the application for discharge be adjourned until after the conclusion of such examination and the furnishing as soon as possible thereafter of a further report in writing by the Official Receiver in Bankruptcy concerning the matter set forth in s.150(iii) of the Bankruptcy Act.

(b) The application may be restored at any time thereafter by any party upon seven days notice in writing to the Registrar and the other parties represented in the proceedings before me, the date of the adjourned hearing to be fixed by the Registrar after consultation with me.

4. Mrs Mannigel's applications be otherwise dismissed.

5. Costs of all proceedings before me be reserved and may be made the subject of argument when the bankrupt's application for an order of discharge again comes before me."

Notwithstanding what was ordered, the Registrar did not issue a summons directed to Mrs Kirton. From what I was told, it seems to have been thought that the formal step of a further application by Mrs Mannigel was an essential prerequisite to the issue of the summons despite the order of the court. As it turns out, the Registrar's omission to issue the summons is of little consequence. It is obvious that, had Mrs Mannigel wished it, such a summons would have been issued. No attempt was made by Mrs Mannigel to obtain a summons or to serve it on the bankrupt's wife. It is apparent from evidence before me and from what I was informed from the bar table about when this matter was first before me that it has been made apparent to Mrs Mannigel's legal advisers that it was for her to have the bankrupt's wife summonsed if she was to have been examined.

In February this year, after a series of letters to Mrs Mannigel's solicitors indicating that, having regard to the failure of Mrs Mannigel to prosecute the examination of the bankrupt's wife, the bankrupt proposed to apply to be granted his discharge from bankruptcy forthwith, such an application was filed in the court on 11 February 1983, returnable on 12 April 1983, and was served on the Brisbane agents of the solicitors for Mrs Mannigel on 17 February 1983.

A further report from the Official Receiver, as representative of the trustee of the estate of the bankrupt, was furnished but little was able to be added to what was previously known. It remains the position that there is no prospect of a dividend for creditors.

The application came before me on 12 April 1983 when it was adjourned by me to 27 April 1983. There was no appearance on 12 April on behalf of Mrs Mannigel.

The bankrupt on 12 April 1983 made a further application to the court in the following terms:

"1. That the part of the order of his Honour Mr Justice Fitzgerald made at Brisbane on the 12th day of October 1982 that Mrs Kirton wife of the bankrupt be summonsed to attend before the Registrar to give evidence under section 81 of the Bankruptcy Act 1966 be rescinded, varied or discharged.

2. For costs of and incidental to this application and those costs which have been reserved.

3. For such further or other order as the court deems fit."

That application, supported by an affidavit by the bankrupt's wife, also came before me on 27 April 1983. On that day, Mrs Mannigel was represented by her Nowra solicitors Brisbane agents who had little by way of instructions. I adjourned the application to 16 May 1983 to permit them to obtain instructions as to whether the applications were opposed and, if they were, to permit a date to be set for hearing. On 16 May they had no instructions to obtain a date for hearing.

To ensure that, whether deliberately or inadvertently, the bankrupt was not unduly delayed, I fixed a hearing for today 20 May 1983. It is now more than a year since the bankrupt first applied for a discharge and more than 6 months since the application was adjourned to permit Mrs Mannigel to have the bankrupt's wife examined. I was informed this morning by a solicitor from the Brisbane agents for Mrs Mannigel's Nowra solicitor that the bankrupt's applications are no longer opposed. In the circumstances, I am satisfied with the evidence contained in the affidavit sworn by the applicant's wife and consider that it is inappropriate that she should be required to give the evidence or produce the documents referred to in the order made on 12 October 1982.

Accordingly, pursuant to sub-section 37(1) of the Bankruptcy Act, I discharge orders (1) and (2) made on 12 October 1982. Further, pursuant to the same sub-section, I vary order (3) made on 12 October 1982 to permit and provide for the adjournment to today of the bankrupt's application for a discharge.

I am satisfied on all the material that it is now appropriate to grant the bankrupt a discharge from bankruptcy and I order that such a discharge be granted.

By the applications now before the court, the bankrupt asks that an order be made in his favour for the payment by Mrs Mannigel of the costs previously reserved and the costs of the current applications. However, before me this morning, the solicitors for the respective parties are agreed that it is appropriate that each party should bear his or her costs and no order for costs is asked for.

Further, no application is made for costs by the Official Receiver who appeared on behalf of the trustee of the estate of the bankrupt. In the circumstances, I make no order as to costs.