Re Main, K.J. v Ex parte Main, K.J

[1987] FCA 340

340

i NOT FOR GENERAL DISTRIBUTION

i I N THE FED RAL COURT

OF AUSTRALIA

I	GENERAL DIVISION
!	BANKRUPTCY DISTRICT
j	OF THE S ATE OF
WESTERN AUSTRALIA No. 523 of 1985

RE: K E V I N J O H N

BANKRUPT -

EX PARTE: KEVIN

A p p l i c a n t

CORAM:	FRENCH 3.
8 J U N E 1987

EX TEMPORE REASONS FOR JUDGMENT

T h i s is a n a p p l i c a t i o n b y K e v i n J o h n Main under s .150 of

t h e B a n k r u p t c y Act f o r d i s c h a r g e f r o m h i s b a n k r u p t c y .

He became a b a n k r u p t o n h i s own p e t i t i o n on 14 November

1985. The t rustee 's r e p o r t , w h i c h is n o t c o n t e s t e d i n r e s p e c t of

a n y mater ia l f a c t s , d i s c l o s e s t h a t a t t h e d a t e o f b a n k r u p t c y h e

was 34 y e a r s o f age, s e p a r a t e d f r o m h i s w i f e a n d i n r e c e i p t of

unemploymen t bene f i t s of $ 1 8 5 . 0 0 p e r f o r t n i g h t , f r o m w h i c h h e p a i d

rent of $70.00 p e r f o r t n i g h t .

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He was m a r r i e d i n F e b r u a r y 1 9 8 2 a n d s e p a r a t e d from h i s

w i f e f o r a s h o r t time b u t , a t t h e d a t e o f b a n k r u p t c y , was l i v i n g

w i t h h i s w i f e a n d i n r e c e i p t of unemployment b e n e f i t s . I s h o u l d

s a y i n r e l a t i o n t o t h e separat ion, t h a t i t a p p e a r s t h a t a t h i s

f i r s t i n t e r v i e w Mr Main i n d i c a t e d t h a t h e was s e p a r a t e d b u t

s u b s e q u e n t l y c o n f i r m e d t h a t h e h a d r e c o n c i l e d w i t h h i s wife.

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I . 2.

I F r o m 1980 u n t i l 1 9 8 3 h e was employed a s bar manager a t

C leo ' s Tavern i n F r e m a n t l e . D u r i n g t h e p e r l o d of h i s employment

h e c o n t r a c t e d b a n k c a r d d e b t s , b e l n g a d e b t f o r t h e h l r e o f a motor

v e h i c l e , a n d i n 1 9 8 2 e n t e r e d l n t o a n a g r e e m e n t f o r t h e p u r c h a s e o f

a M i t s u b i s h i S i g m a motor v e h i c l e f o r $ 1 4 , 1 0 0 . 0 0 . T h a t was i

s u r r e n d e r e d a s h o r t time a f t e r w a r d s a n d s o l d b y a f lnance company,

l e a v i n g a s h o r t f a l l o f $ 4 , 0 1 0 . 0 0 .

He a l s o l i s t e d a d e b t o f $636.00 o n h i s statement o f

a f f a i r s f o r t h e s u p p l y o f b e e r b u t now s a y s t h a t t h a t is, i n f a c t ,

a d e b t owed by a company, Nalze t P t y L t d t r a d i n g a s Cleo 's Tave rn ,

which was owned by r e l a t l v e s of h i s wife.

A f t e r c e a s i n g e m p l o y m e n t w i t h Cleo's T a v e r n i n 1 9 8 3 , M r

Main worked as a c h e f or barman for t h e n e x t 20 months i n Kewdale, S I

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Meekathar ra and Halls C r e e k .

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I n O c t o b e r 1 9 8 5 h e r e t u r n e d t o P e r t h a n d r e g i s t e r e d for

u n e m p l o y m e n t b e n e f i t s a n d h a s b e e n i n r e c e i p t of t h o s e b e n e f i t s

s i n c e t h a t date.

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A f t e r h e r e t u r n e d t o P e r t h h i s c r e d i t o r s were p r e s s i n g

f o r p a y m e n t o f t h e i r d e b t s a n d u l t i m a t e l y h e	f i l e d	h i s p e t i t i o n	on
1 4 November .

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Mr	Main	claims	t h a t t h e m a i n c a u s e o f h l s b a n k r u p t c y	was	I-
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e x c e s s i v e	u s e	o f	c red i t	f a c i l i t i e s	a n d	t h a t	v i e w	is	a c c e p t e d ,	i t	!
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seems, by the Officlal Trustee with, of course, the additional

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I	factor	of hls unemployment	contributing to his lnablllty to	meet
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l his f nancial ob igations.

There is no suggestion that his conduct since the date

of bankruptcy has been other than satisfactory.

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No offences have been proved to have been committed by

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him and there are no matters arising under sub-s. (6) of s.150

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which would provide sufElcient reason for refusal	OK suspension of	I -
an order of discharge.

Creditors have been informed of the fact of the application, as appears from an affidavit on the file.

His statement of affairs dlsclosed assets totalling $209.00 and liabilities totalling $6,924.00, although that must be

read in the light of his subsequent statement about the amount of	r :
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$636.00 for the supply of beer.

The liabilities as listed, showed two unsecured

creditors for Bankcard, $1,457.00, one unsecured creditor for the shortfall on the surrendered vehicle, $4,010.00 and two unsecured

creditors for goods supplled, $1,456.00. There have been no

proofs of debt lodged.	I
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The realisations have been nil. There are no unrealised

assets in the estate.

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It appears also that there are no funds in the estate to ,'

meet any official fees or costs of administration and no funds

held to enable payment of a dividend.

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In his affidavit sworn on 1 April 1987, in support of his application for dlscharge, M r Maln says that he and his wife

have been offered a Homeswest loan at a very low rate of

repayment. They presently pay $160.00 a fortnight by way of rent. Homeswest, which would be prepared to make available a home for purchase by them, will not, however, provide assistance to an undischarged bankrupt. This is confirmed by a letter of 1 9 March 1 9 8 7 addressed to Mr Main from the Regional Manager of Homeswest, which says:-

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"As per our telephone conversation, I wish to confirm	. .
that Homeswest's policy is that purchase assistance will	L
not be provided to an undischarged bankrupt.	!.
Applications are accepted but the applicants must have

discharged their bankruptcy when their turn	is reached	:'
for assistance."
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Mr Main, in his affidavit, says that he and his wife are

having their first child and to be provided with the home loan

assistance would start them on a new life for the family.

Homeswest would make them pay their income into the bank

and would take money out of	the bank first to make sure that the
loan would be paid back.

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., 5.

I	ME Main says 13 his affidavlt that he 1s 36 years of age
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and it may be the last time that he and his wife are offered a

loan at such a low interest rate.

In the ordinary course he would have been discharged from his bankruptcy by operation of law In November	1988.	,.
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The Court does not lightly entertain applications for

discharge prior to the expiry of the statutory period set out in

the Act. However, in my opinion, in this case there is no

compelling reason of commercial morality or public interest that

would militate against the grant of an order of discharge. There	..
is, however, a strong private interest on the part of the bankrupt
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for securing a discharge and it is, in my opinion, a legitimate	'.
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basis for making the order sought.
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The circumstances of the bankruptcy do not suggest that

his discharge will put potential creditors at risk.

There is no question of his entering into a business on his own account and nothing in hls history indicates that he has	I-
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undertaken private commercial activities	in the past OP is likely
to do so in the future.

In the circumstances, therefore, I am prepared to make

the order sought. I will order that Kevin John Main be discharged

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from hls bankruptcy with effect from today's date.

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I c e r t l f y t h a t t h e p r e c e d l n q f i v e ( 5 )

p a g e s are a t rue copy o f t he Reasons

f o r J u d g m e n t h e r e i n o f h l s H o n o u r

M r Jus t i ce French .

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Mr K . J . Main a p p e a r e d i n p e r s o n .

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!	Mr	O'Driscoll	a p p e a r e d	f o r	t h e O f f l c i a l R e c e i v e r
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Date of Hear ing: 8 J u n e 1987

Date of Judgment: 8 J u n e 1987