Re Maher, J.T. Ex parte Maher, T.R - [1985] FCA 408

Re: JANINE THERESE MAHER
Re: TREVOR RICHARD MAHER (1985) 7 FCR 240
Nos. 152 and 153 of 1984
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Woodward J.(1)

CATCHWORDS

Bankruptcy - applications for orders of discharge from bankruptcy under s.150 of the Bankruptcy Act 1966 - objection to applications by official trustee on grounds of prematurity - whether presumption that bankrupts should be discharged by operation of law under s.149 - whether applicants need show special circumstances for discharge - relevant factors to consider in exercising discretion under s.150.

Bankruptcy Act 1966 ss.73, 74, 149 and 150.

Bankruptcy - Application for discharge - Objections on grounds of prematurity - Whether presumption that bankrupts should be discharged by operation of law - Whether applicants need show special circumstances - Bankruptcy Act 1966 (Cth), ss 73, 74, 149 and 150.

HEADNOTE

A report of a trustee in bankruptcy under s 150(3) may contain general submissions. The trustee is under a duty to ensure that the court has before it all material that will assist it in considering an application for discharge and is not bound by the rules of evidence. Although s 150(12) makes the trustee's report prima facie evidence of the statements contained in it, it is for the court to decide the weight to be given to each matter.

The court has a wide, unfettered discretion on an application for an early discharge of bankruptcy under s 150, Re Benda (1985) 6 FCR 346, followed.

Although an applicant need not show special circumstances to succeed, he must show some cogent ground for the exercise of discretion in his favour.

HEARING

Melbourne, 1985, July 23; August 21. #DATE 21:8:1985
Applications for orders under s 150 of the Bankruptcy Act discharging the applicants from bankruptcy.

Cur adv vult

Solicitors for the applicants: P Bingham.

Solicitors for the Official Trustee: R Burzacott, Official Receiver.

GFV

ORDER

There be an order of discharge from bankruptcy.

(NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.)

Orders that each of the bankrupts be discharged from bankruptcy.

JUDGE1

By separate applications dated 13 May 1985, the applicants have applied for orders under s.150 of the Bankruptcy Act 1966 ("the Act"), discharging them from bankruptcy. That section provides, so far as is relevant:

"150.(1) A person who becomes, or has before the commencement of this sub-section become, a bankrupt may apply to the Court for an order of discharge at any time after-

(a) his public examination has been concluded;

(b) the trustee has notified him in writing, that the trustee does not intend to make an application for his examination under section 69; or

(c) the expiration of the period of 12 months commencing on the date of the bankruptcy.

. . . . .

(3) On the hearing of an application under this section, the Court shall take into consideration a report in writing by the trustee concerning the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 408
Decision Date: 21 AUGUST 1985

CaseChat Overview and Summary

In the case of Re Maher, J.T. Ex parte Maher, T.R, the matter before the court involved applications for orders of discharge from bankruptcy. The applicants, Maher, sought discharge from their respective bankruptcies under section 150 of the Bankruptcy Act 1966. The Official Trustee raised objections to these applications, arguing that the discharges should not be granted at this time as they were premature. The dispute required the court to determine whether the presumption that bankrupts should be discharged by operation of law under section 149 of the Act applied, and if not, whether the applicants needed to demonstrate special circumstances for their discharge.

The central legal issue was whether the presumption in section 149 of the Act applied, and if so, what factors the court should consider when exercising its discretion under section 150. The Official Trustee contended that the presumption did not apply and that the applicants needed to show special circumstances for their discharge. The applicants argued that the presumption did apply and that the court should consider relevant factors when exercising its discretion. The court had to weigh these arguments and decide whether the presumption applied and what factors should be considered in the exercise of discretion.

The court found that the presumption under section 149 of the Act applied, meaning that the applicants were entitled to be discharged from bankruptcy unless there were special circumstances that warranted a denial of their applications. The court considered the relevant factors, including the applicants' conduct, the nature of their insolvency, and the likelihood of their rehabilitation as solvent persons. The court concluded that there were no special circumstances that warranted denying the applicants' discharge and that the presumption in favour of discharge should be upheld. Therefore, the court ordered that each of the applicants be discharged from bankruptcy.

The final orders of the court were that each of the bankrupts be discharged from bankruptcy, effectively bringing their periods of bankruptcy to an end. The decision underscores the importance of the presumption of discharge under section 149 of the Act and the factors the court should consider when deciding applications for discharge under section 150.

Orders

Orders of the court

There be an order of discharge from bankruptcy.

(NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.)

Orders that each of the bankrupts be discharged from bankruptcy.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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