Re McKiddie, S.E.

[1989] FCA 459

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JUDGMENT No. ..$.5	2.	l...&	.	i
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IN THE FEDERAL COURT	)
OF AUSTRALIA	1
BANKRUPTCY DISTRICT

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OF THE STATE OF	1
WESTERN AUSTRALIA	1 No. 898 of 1987

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RE: STUART ERNEST McKIDDIE and

DIANNE ELLEN MCKIDDIE

Bankrupts

EX PARTE: STUART ERNEST McKIDDIE

and DIANNE ELLEN MCKIDDIE

Applicants

CORAM :  FRENCH J.
24 July 1989

EX TEMPORE REASONS FOR JUDGNENT

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These applications are brought by Stuart Ernest McKiddie and his wife, Dianne Ellen McKiddie, for discharge from their	i'	'
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bankruptcies. They became bankrupt on 8 December 1987. The
Official Receiver's report indicates that at the date of
bankruptcy the McKiddies were married with four children aged 17,
16, 15 and 4 years, dependent upon them for support. Mr McKlddie
was 39 years of age and unemployed, Mrs McKiddie was 38 years of
age and engaged full-time in home duties. At that time they
received unemployment benefits of $237 per week and paid $62 per
week in mortgage repayments to Homeswest for the purchase of their
residence at 2 Trlstram Gardens, Parmelia. Mr McKiddie has been
previously bankrupt on 11 September 1981 but was discharged by	!'.
force of the provisions of sub-s.149(1) on 12 September 1984.
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In 1982, the McKiddies travelled to Whyalla in South Australia in search of employment but were unsuccessful.	i -
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then moved to Rochester, Victoria where they

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clothing factory and in 1984 after being retrenched from their positions, moved back to Western Australia. In thi$ State, they have since resided in Dongara, Narrogin, Thornlie, Parkwood and parmelia and have continued in receipt of unemployment benefits.

I	Mr McKiddie said he was unable to secure employment because of his age, whereas Mrs McKiddie was necessarily limited
!	in the sort of employment she could undertake because of her
l	obligations to look after their four dependent children. In May 1987 the McKiddies jointly purchased a house property located at 2
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I	Tristram Gardens, Parmelia. Their purchase was financed by Homeswest who secured the debt of some $43,000 by registering a mortgage over the title to the property. A $2,150 deposit for the property was recelved by the bankrupts under a Homeswest scheme and they were provided with assistance to the value of $3,000 less
1	I	the deposit under the First Home Owners Assistance Scheme. Their
l	I	monthly repayments under the loan contract were set at $421, although later reduced to $60 per week under a Homeswest subsidy. In the event, the McKiddies were unable to meet the repayments and being unable to satisfy creditors decided to file their debtors petition in bankruptcy. They have remained unemployed and in receipt of social security benefits since that time, although in
his application for discharge Mr McKiddie disclosed that he has now gained employment.
The statement of affairs disclosed assets in the joint estate of $3,018 with no assets in their separate estate, and liabilities in the joint estate of $1,041 and separate liabilities of $328 with respect to Stuart Ernest McKiddie and $140 with

respect of Mrs McKiddie. Proofs of debt submitted amounted to one proof for $333 in the joint estate and one for $192 in Mr McKiddiers separate estate. Realisations out of the joint estate came to $3,566. There are no unrealised assets. The house property at 2 Tristram Gardens has been sold by the Official Trustee. Settlement was effected on 12 August 1988 and the total surplus of $3,566.87 was received into the joint estate. The proofs of debt and official fees have been paid in full out of the proceeds of the sale of the house.

The Official Receiver's report indicates that upon the

filing of the joint statement of affairs a further creditor of $6,219 was disclosed. This creditor, I am informed, was a financier under a hire purchase agreement and that amount represented an after-sale shortfall. However, no proof of debt was received in relation to that amount although the creditor in question was notified. The sum of $190, which represents an electricity bill from the State Energy Commission, in the separate estate of Mr McKiddie, has not been paid there having been insufficient funds after payment of official fees and the payment out of the dividends in the joint estate to allow that debt to be repaid.

There has been no question of any offences committed by the bankrupts or of any conduct prior to or since bankruptcy which has been other than satisfactory. There has been no opposition to this application although creditors have been notified and there are no matters specified under sub-s.150(6) which would provide a sufficient reason for the refusal of an order of discharge.

In the circumstances I am satisfied that this is a case in which neither the public interest nor any question of commercial morality is advanced by the continuance of the bankruptcy and, in the circumstances, I propose to order that both bankrupts be discharged.

I certify that this and the preceding
three (3) pages are a true copy of the
Ex Tempore Reasons for Judgment of

His Honour Justice French.

Associate:

Date :

ad f / y /9x7

No appearance for the Applicant.

Mr J. Busher appeared on behalf of the Official Receiver.

Date of Hearing:  24 July 1989

Date of Judgment: 24 July 1989