Re Mark Turner v Kinian Pty Ltd - [1992] FCA 396

39'0 S2

JUDGY ENT NQ ,A - ,
.

ERAL COURT OF AUSTRALIA )

The bankrupt is a specialist medical practitioner carrying on practice at Penrith and Katoomba. She was made bankrupt on 5 September 1990 and in the ordinary course of events will be discharged at that time in 1993. An application is made on her behalf today for discharge from bankruptcy under section 150 of the Bankruptcy Act 1966 (the Act). The application

for discharge is opposed by two creditors, MGICA Limited and Suncorp Finance Limited, who ask that the application be adjourned on the grounds that they are inadequately informed about the circumstances of the estate. In this regard they particularly criticise the trustee for failing to supply information which could be significant on the issue of discharge.

to be called Resi-Statewide Mortgage Corporation Limited (Resi) and later became the Bank of Melbourne. The bank
assigned the debt to MGICA which was the only creditor to file a notice of intention to appear and oppose the application for discharge. The single ground stated in the notice was:

MGICA in fact was the assignee of a debt which was the original substantial cause of the bankrupt's indebtedness. Dr Underwood guaranteed a loan to her former husband by what used

That the applicant has failed during the course of her bankruptcy to contribute financially towards the debt owing to MGICA Limited.

Suncorp only appeared in the latter stages of this hearing, apparently upon being advised by the representatives of MGICA during the luncheon adjournment of the Court, that the application was being heard today.

The application for discharge is dated 18 March 1992 and, according to the evidence, was posted to creditors, including MGICA and Suncorp, on 26 March. It seems that Suncorp received their copy by post on or about 30 March and MGICA maybe a day or so earlier. What was served was a copy of the application for discharge and no more. As required by the Act, the trustee prepared, in connection with this application

is no formal obligation on the bankrupt or the trustee to for discharge, a report dated 15 April 1992. Although there

serve such a document on creditors, it apparently came to the notice at least of MGICA. It was, however, a very scant report and provided very little information which could enable any creditor to decide an attitude to the application, still less the Court which comes to the matter without any background knowledge at all.

The applicant has filed a significant amount of af f idavit evidence in the application. In addition to an affidavit of service, there was filed on 22 April 1992 an affidavit by Dr Underwood herself of some 18 pages with a large number of annexures. This affidavit explains to the Court how she became insolvent and a bankrupt and there has been no challenge to the contents of the affidavit. Although served very late, it cannot be said that there was anything in the affidavit…

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: [1992] FCA 396
Decision Date: 29 Apr 1992

CaseChat Overview and Summary

This case involves an application for discharge from bankruptcy by Dr. Mark Turner, a specialist medical practitioner. The application is opposed by two creditors, MGICA Limited and Suncorp Finance Limited, who argue that they were inadequately informed about the circumstances of the estate. The primary legal issue for the court to decide was whether to grant an adjournment to allow the creditors to investigate the estate further, or to proceed with the discharge application. The court found that the creditors had ample opportunity to investigate the estate and that there was no evidence to suggest that any significant assets had been overlooked by the trustee. The court also found that the creditors had not acted diligently in pursuing their interests and that an adjournment would not be in the public interest. Therefore, the court refused the application for an adjournment and proceeded to consider the discharge application. The court found that the bankrupt had cooperated with the trustee and creditors and had made a significant contribution to the estate. The court also found that the bankrupt's bankruptcy was due to unfortunate circumstances and that there was no evidence of culpable conduct on her part. Therefore, the court exercised its discretion to grant the bankrupt an immediate discharge from bankruptcy. The final orders of the court were that the application for adjournment be refused and that the bankrupt be discharged from bankruptcy with immediate effect.

Orders