Re Morgan, K.J
[1995] FCA 185
•21 MARCH 1995
CATCHWORDS
BANKRUPTCY - automatic discharge at the expiry of three years from filing of statement of affairs - failure to file statement within 14 days from notification of bankruptcy - delay in commencement of the three-year period - abridgment of three-year period fixed by s 149 of the Bankruptcy Act 1966.
Bankruptcy Act 1966 (Cth) ss 33, 149
Re Rohde (1993) 42 FCR 149
Re Ghee Siang Khoo, unreported, Lindgren J, 16 August 1994.
RE: KEVIN JOHN MORGAN
No NB 1990 of 1990
Lindgren J
Sydney
21 March 1995
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
BANKRUPTCY DISTRICT OF THE ) No NB 1990 of 1990
STATE OF NEW SOUTH WALES )
Re:KEVIN J MORGAN
CORAM:Lindgren J
PLACE:Sydney
DATE:21 March 1995
MINUTE OF ORDERS
THE COURT:
ORDERS that the period provided for in sub-s 149 (3) be abridged to a period of six months.
DECLARES that the filing of the statement of affairs which occurred on 7 September 1994 is an effective filing for the purposes of paragraph 149 (3) (a) of the Act.
DECLARES that by operation of sub-s 149 (3) the Bankrupt is discharged from bankruptcy.
NOTE: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
BANKRUPTCY DISTRICT OF THE ) No NB 1990 of 1990
STATE OF NEW SOUTH WALES )
Re:KEVIN J MORGAN
CORAM:Lindgren J
PLACE:Sydney
DATE:21 March 1995
REASONS FOR JUDGMENT
Application is made by the Bankrupt for an order pursuant to paragraph 33 (1) (c) of the Bankruptcy Act 1966 (Cth) ("the Act) abridging the period of three years referred to in paragraph 149 (3) (a) the Act to six months. The effect of such an order would be that the period for automatic discharge would become six months from the filing in Court on 7 September 1994 of the Bankrupt's statement of affairs. In other words, the effect would be that the discharge by the operation of the Act would have occurred on 7 March 1995.
A sequestration order was made against the Bankrupt on 23 October 1990. Maxwell Christopher Donnelly is the trustee of the Bankrupt's estate. On or about 4 April 1991 the Bankrupt lodged with his trustee a copy of his statement of affairs. However, the Bankrupt's statement of affairs was not filed in the Court on that date. The Bankrupt explains that he was not aware of his obligation to file the statement with the Court. Mr Donnelly did not file the statement of affairs with the Court on behalf of the Bankrupt either.
In August 1994 the Bankrupt approached the Court Registry seeking confirmation that he had been discharged from bankruptcy. In fact, the automatic discharge after three years would have been operative on or shortly after 4 April 1994 if the statement of affairs which he had lodged with the trustee in bankruptcy had been filed in the Registry on or shortly after 4 April 1991.
A Deputy Registrar in Bankruptcy wrote a letter dated 2 September 1994 to the Bankrupt pointing out that his statement of affairs had never been filed so that there had been no automatic discharge by operation of s 149. The Deputy Registrar forwarded a copy statement of affairs and requested that this be returned to the Registry and that a copy be supplied to the trustee in bankruptcy as soon as possible. A statement of affairs was filed by the Bankrupt on 7 September 1994.
The kind of difficulty which has arisen here is not novel: see Re Rohde (1993) 42 FCR 149 (FCA/Burchett J) and my own decision in Re Ghee Siang Khoo, unreported, 16 August 1994.
The trustee of the bankrupt estate has consented to the granting of the relief sought.
Paragraph 33 (1) (c) of the Act is relevantly as follows:
"33(1)The Court may:
(a)...
(b)...
(c)extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or abridge any such time."
In the cases to which I referred earlier, it was held that this provision empowers the Court to give relief of the kind sought here. The evidence satisfies me that the case is an appropriate one in which to grant relief. In the circumstances, I think that the appropriate course is to abridge the time provided for in sub-s 149 (3) of the Act to the period sought, that is a period of six months.
Accordingly, firstly, I order that the period provided for in sub-s 149 (3) be abridged to a period of six months. Secondly, I declare that the filing of the statement of affairs which occurred on 7 September 1994 is an effective filing for the purposes of para 149 (3) (a) of the Act. Thirdly, I declare that by operation of sub-s 149 (3) the
Bankrupt is discharged from bankruptcy.
I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:3 April 1995
Heard: 21 March 1995
Place: Sydney
Decision: 21 March 1995
Appearances: Mr R Alkadamani of counsel instructed by Goldsmiths Lawyers appeared for the applicant.
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