Re Moore, W. v Ex parte The Nominal Defendent

[1985] FCA 303

3 03

C h T C H W O R D S

Ek[\KRirFTCY - appllcatlon for leave to entec o b ] ~ c t l n n to

alscharqe - ~nterln relief souqht - ~ u r ~ s d ~ c t l o n to lengthen

period of h a n l r ~ u F t c 7 - whether can extend for a period under

s.l19(i2).

i

MINUTES OF ORDER

PINCUS J.

28 JUME 1995	I
YRISBAME

IN THE FEDERAL COURT OF AUSTRALIA	)
GEIQERAL DIVISION	) PET NO. CQlO of 1982
BANKRUPTCY DISTRICT OF "HE SOUTHERN ) CISTRICT OF THE STATE: OF OUEEhJSLAND )

RE: WILLIAM MOORE

M FARTE: DiE NOMINAL DEFENDANT

PINCUS J.

This i s s n a p p l i c a t i o n made by t h e PJomlnai Defendant

(Queensland) :or l e a v e t o e n t e r an ob jec t lon E O t h e d l scha rae of

the bankrupt pur'?uanz t o S. 149 of ths Bqnkruntcy Act 1566, In

which the applicant seeks i n t e r i n r e l i e f . The application has

been served on the bankrup t , bu t t he a f f ldav l t of Mlchael Gera rd

Wadley discloses tha ' , service W ~ S e f f e c t e d on117 on 26 June 1985,

two d a y s sgo. Counsel for the applLcant does not ccntenrl t h a t

t h e service wr-.s w l t n i n s u f f i c i e n t tlme t o e n a b l e the t-ankrupt

reasonably E O r e s l s t t o d a y , a n d , 11-1 any event , Mr Wadley says

thlt he had d cnnversa t ion w1ch rhe bhnkrupt tsday I n which the

bankrupt Gas t o l d t h a t the a p p l i c a t i o n WGUld be x i ] n ~ b r n & fs2r E m 3

weeks. Al thouqh the conversat ion deposed to 7 1 i l l r h j l e y G?ot:ld

no t necessa r l lp have q lven t he bankrupt the ~ ? t p r l - . - ~ l ? n t h a t 'IC

5hould not appedr today, It seems t o me +,hat i have t o assume

that he would h a v e Taken ~t t h a t Lhe srtbstantir 'e application

would not prcceed

2 .

The mar;erial shows that the applicant I S tbe m l y

L

credltor, belng owed a large sum oi money. The bankrupt became

so on l July 1982 on his own petition, and by vlrtue of the Act would be dlscharged, ordmarlly, three pears from that date, 1 . e .

In two day's tlme. That follows from s . 1 4 9 ( 1 \ , whicn reads:-

"Sublect to this section, a person ~ j h o becomes a

bankrupt after the commencement of this sectlon

1s. by force of this seccion. unless sooner

discharges 19 accordance wlth sectlon 150,

discharged from bankruptcy upon explratlon of 3

years from the date of the bankruptcy."

The dlfflculty f o r the applicant i3 that by the tlme the perlod of two weeks mentloned to the bankrupt explres. if nothlng else 1 s done, s.149!i) wlll have done Its work, and dlscharged the

bankrupt from bankruptcy. There is no qenerai power m the Act

to vary its operatlon, but there is power under 5 . 3 7 to vary the

operation of orders. However, there is no sequestratlon ,3rder

here, and	In any event s . 3 7 ( 2 )	expressly excludes spquestrat1on
orders.

The materlal discloses some merit ln the ,appllcat;on to

enter an oblectlon, and as a matter of d l s e r e L l o n I wzuld be

lncllned to give the appllcant interim relief. lf able to do s o .

That IS, although counsel f o r the appllcant candidly admits that

It comes to the Co~irr; very late, If there were :urlsdlrtlon to do

so I would make an order ho ldmq thlngc: In statu quo fer the

period of two weeks deslred.

3

The questlon 1 s whether I have any power to do that. I

have received assistance. n o t only from M i s s Ghdley, as counsel

for the applicant, but From Mr A.H. Carrlck, the Act!nq Offlclal

Pzcelver. Mr Carrlck, although formally adopt;nq 3 neutral ro l e , has sugqest,ed to me I have no Iurisdlction to w k e any 6rde:- G€ the kind sought.

S

The first of the two bases upon whlch the matter was put

on behalf of tEl? applicant b a s that I might makr an 1r.ter1m rJrder

under s . 1 4 9 ( 8 ) . :-lowever, It seems clzar, bechuse of the

sub-section's rererence to a period exceedmq flve gears, that I

cannot do so . Secondly, it was said that I mlqht mske an order

under s.149(12), havlng the effect of 1engthePinq the period of

thcee years mentioned in s.145(1).	The terms n f s.149'12) ace as
follows:-

"The Court may, at any time before the dlschary of

a bankrupt, on the application of th? Reglscrar,

the Inspector-General, the trus-cee or 3 cred1 c o r ,

dl-rect that the bankrupt shall nor t.9 discharqed

from bankruptcy by virtue of chls sect~m."

Tlze submission aade by MISS Wadley was tha? I mrght properly

apply the sectlcn in such a way as to acki1eve 9 temporary

suspension of the operation of s.149(1). Mt C z r r ~ c k . on the

other hand, submitted that s .149(12 ) cannot h;l,/e i;nl:J a a a r t l a l

operation, and that If an order is made uncJr ;t, ?hen .s.14'4

becomes irrelevant: s o far as the date ci the bankrupt ' 5

discharqe is concerned, there IS then no tlme llmlt. and he mu55

apply f o r discharqe under 5 . 1 5 0 .

4.

1 have noted that Toohey J. had a Sugerflcially simllar

t

matcer before him In the case of Re Mercovigb (Inreported, 27 May

1985) where a holdlng order had been made by the Supreme Court, L

extendlng beycjnd flve years the period \w.,?!n nb:ectlfJl< WYUid

expire, to enable the hearing of a substantive applicstlon. However, in that case, advantage was able to be taken of the fact that there was an ob~ection from the Offlrlal liereiver and It was

posslble to extend that under s . l -19 (8 ) so as to preserve the i

position. In this case, there is no o5jectlon entered, and, In

any event,	s.149(0) does not help fo r the reason have already
mentioned.

The que5tlon then becomes whether s.149(1?.) should be

read as lf It said:-

" . . . direct that the bankrupt s h a l l not, be

discharged f ron bankruptcy by virtue af t h i S

sectxon until the date speclf: ?d I n the_

direct-ia. "

The submlssions mede by Miss Wadley would have mc so read It. Mr

Carrick's contentlon, on the cther hand, 1s Fnat the provlslon

should be read quite literally: that I r m - ~ make a cl~rect~on

under It only if the consequence 1s intended :?..at 5.149 have no

operation henceforth. I have not been referred t c any authority

wlth respect to the polnk just mentioned, but 1 k v e come to the

concluzion that the contention ma&e by Mr Carrick 1s correcr, and

that I cannot make what mlght be called a hrJldlng order under

s.l49(12), althouqh 1 woluld, as 1:	have Indicated, do lt I f 1 had
the power.

Other suggestions were made, more fainclp, as to sources

of power. The only one r8?hich 1 should mention 1 s that attention

was drahn to s.30(1) (b) , which permlts the Courr; to make orders

of an lnterlocutory lilnd. In my view, t h e ~ r o v ~ s l o n does not ass:st here, because the order sought could r.r#t be described as

one, "necessary for the purposes of carrying out or qlving effect

to this Act . . . I ' It would rsther be one designed tu circunvent

the effect of s.149(1) which, as I have mefitioned, achleves E h e

result that there is an autoinatic discharge unless an order 15

made under the later sub-sections. I cannot rea3 that provlslan

l 1

- that 15, s.143(1) - as subject al.so to a power to extend the period o€ bankruptcy for a short o r long time under 5.30. It may

1

be that there 1s a Lacuna in the Act, but I do not thjnk the

aethod of meeting the difficulty sugges~ed by the applicant 1 s

correct, nor have I been able to see that any ocher provislon of

the Act allows me to make an order extel-idlng the perlod of

i

bankruptcy for 3 short time, pending the hearing of an

application f o r leave to enter an objectlon.

- L should add that it was not contended bp the applxcant

that I could heat the principal applicatlon for leavs today. It

seems clear In the circumstances that I cannot, ~ecai15e Qf the

indication given 'CO the bankrupt, mentloned .ibove. i therefore

dismiss the appllcatlon f o r interim rellef. Counsel has

lndlcated that in consequence the princlpal applicaclon will not

be pursued and I a l s o dlsmlss the appllcatlon im7r Zmve to enter

; c+:-(,{)# ,L I! ;: - . ~ L , i -c

an objectlon. , I

r - - r ,-c :;r I ,

paces are n i! L c .

ILld;lTCI:t l,c.te,n c ; a , : i IcI:cLu - . >

Mr. JUS~ICC P!nca: . ,c i / 3 , .-

</7/?,C )\ss.;: '51L

Dated