Re Lance Austin Davis v Ex Parte Bankrupt
[1985] FCA 396
•16 AUGUST 1985
Re: LANCE AUSTIN DAVIS
Ex Parte: THE BANKRUPT
No. 58 of 1962
Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION BANKRUPTCY DISTRICT
OF THE STATE OF NEW SOUTH WALES
AND THE AUSTRALIAN CAPITAL TERRITORY
Morling J.
CATCHWORDS
Bankruptcy - application for discharge - sequestration order made in 1962 - unsatisfactory conduct by bankrupt - refusal of two prior applications for discharge - discretion - third application granted
Bankruptcy Act 1966, ss. 149, 150
Bankruptcy Amendment Act 1980, sub-s.72(2)
HEARING
SYDNEY
#DATE 16:8:1985
ORDER
That the applicant be discharged from bankruptcy.
JUDGE1
The applicant seeks an order that he be discharged from bankruptcy.
A sequestration order was made against the applicant on 6 February 1962. The history of his bankruptcy is referred to at length in the judgment of McGregor J. of 24 July 1981 when he refused a previous application for discharge and I need only refer to the salient events in it. On 21 April 1966 Clyne J. made an order that the applicant should pay the sum of L/11,678.15.8 to the Official Receiver, or transfer to him within a specified time any assets into which the said sum had been transposed. This order has never been complied with.
On 29 August 1973 Sweeney J. refused an application by the bankrupt that he be discharged from bankruptcy. In his reasons the learned judge said that he was satisfied with the conclusions to which the Official Receiver had come in paragraphs 17, 18 and 19 of his report. Those paragraphs were in the following terms:
"17. The bankrupt's conduct throughout his bankruptcy has been most unsatisfactory in that: -
(a) He has made no contributions to his estate.
(b) He has changed his address on a number of occasions without advising the Registrar in Bankruptcy or the trustee of such changes as per the provisions of Section 80 of the Act. In correspondence a Post Office box number was generally used.
(c) He has written a series of abusive and threatening letters, at one time threaten ing to do harm to the then Official Receiver.
(d) He has failed to assist me in the admin istration of his estate and on one occasion was required to be arrested because of his failure to attend for examination.
(e) He has failed to satisfactorily account to me for the sum of $23,358.00, as mentioned in paragraph 15, or for any assets into which the said sum may have been transposed.
"18. I consider the bankrupt has committed offences under the Act as follows: -
Section 265 - Being a bankrupt
(b) He did not, to the best of his knowledge and belief, fully and truly disclose to the trustee particulars of any disposition of property made by him within the period of two years immediately preceding the date on which he bacame a bankrupt in that he has failed to disclose the disposition of the sum of $23,358.00 being part of the proceeds of the sale of a property sold by him on 26 April, 1961.
Section 270 (1) -
(a) He did not keep such books, accounts and records as are usual and proper in the business carried on by him to sufficiently disclose his business transactions and financial position between 6th February, 1957 and April, 1961 being a period in which he carried on business within the five years immediately preceding the date on which he became a bankrupt; or
(b) Having kept such books accounts or records, he has not preserved them. "19. I report the following fact under Section 150(6) -
(a) that the bankrupt has omitted to keep and preserve such books, accounts or records as sufficiently disclose his business trans actions and financial position within the period of five years immediately preceding the date on which he became a bankrupt;
(b) that the bankrupt has failed to account satisfactorily to the trustee for any loss of, or depreciation of, assets or for a deficiency of assets."
The applicant has not complied with the order made by Clyne J. on 21 April 1966 relating to the payment of the above mentioned sum of money to the Official Receiver.
On 24 July 1981 McGregor J. refused the applicant's second application for discharge. McGregor J. was of the opinion that the bankrupt's behaviour had been generally unsatisfactory, that he had failed to account for assets and that he had ignored the order made by Clyne J.
On 7 July 1970 an objection to the discharge of the bankrupt from his bankruptcy by force of s.149 (in its then form) of the Bankruptcy Act 1966 was lodged by the then Official Receiver as trustee, on the following grounds:
"1. The bankrupt is unable to explain the deficiency which is in excess of $15,000.
2. No contributions have been received."
That objection was extant at the time the matter came before McGregor J. The objection has not been withdrawn, but by virtue of the effect of sub-s.72(2) of the Bankruptcy Amendment Act 1980 it will cease to be of effect on 1 February 1986.
The bankrupt now makes his third application for discharge. He has now been a bankrupt for over twenty three years. His conduct has been unsatisfactory but nevertheless it is competent for the Court to grant him a discharge if, in the exercise of its discretion, it thinks it is appropriate to grant his application. On an application for discharge the Court has a wide discretion - see Re David Howard Prince; Ex parte The Bankrupt (1961) 19 ABC 39 at p 41 per Clyne J. In exercising its discretion the Court must have regard to the interests of the public and of the debtor and his creditors.
Having regard to all the circumstances of the case, particularly the fact that the applicant has now been a bankrupt for twenty three years and bearing in mind the operation of sub-s.72(2) of the Bankruptcy Amendment Act 1980, I think that it is appropriate that I should grant the application.
The applicant has been an invalid pensioner for many years and there does not appear to be any suggestion that he currently has any assets. In the circumstances there appears to be no point in refusing to grant the application. The applicant's past unsatisfactory conduct has incurred the displeasure of the Court which has been marked by the refusal of his two prior applictions. I think the time has now arrived when it is appropriate to order that the applicant be discharged from bankruptcy and I so order.
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