Re Murphie, R.J

[1992] FCA 240

IN THE FEDERAL COURT OF AUSTFUUIA

GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

No OB 2398 of 1991

RE: ROBERT JOHN MURPHIE

Debtor

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J
DATE OF ORDER:	7 April, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The application is dismissed.

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 STATE OF OUEENSLAND

No OB 2398 of 1991

RE: ROBERT JOHN MURPHIE

Debtor

C O W :	Cooper J
DATE :	7 April, 1992
PLACE :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the bankrupt, Robert John Murphie, for discharge from his bankruptcy. The bankrupt was declared bankrupt on his own petition on 22 October, 1991.

The court has before it a list of the creditors of
the bankrupt, the majority of which in terms of number either

do not oppose or did not respond to notice being given of the

Colin David Giddings, appears and does oppose the discharge of	application to the court today. The major creditor, however,
the bankrupt at this time in circumstances where Mr. Giddings claims a debt of approximately $28,000.00 which debt has not been satisfied in whole or in part by the payment of any dividend by the estate.
A perusal of the report of the Official Receiver and the affidavit of the applicant shows that the applicant has no assets and no income which as a matter of probability will lead to the payment of a dividend at any future time. He was severely injured in or about 1983 and as a result of those injuries has proceedings on foot in the Supreme Court of Queensland seeking substantial damages. Unfortunately, those proceedings are not moving ahead at any great rate.
The primary ground put forward by the applicant for his discharge is contained in paragraph 18 of his affidavit in support of the application which reads :-

" I c o n s i d e r t h a t should m y bankrup tcy

c o n t i n u e f o r t h e t h r e e y e a r p e r i o d no

u s e f u l purpose would be s e r v e d " .

During his evidence, it became clear that the principal matter of concern to the bankrupt is the possible loss of the house property which he and his wife own in Monto but which is subject to a mortgage to the Queensland Housing Commission. There is in reality little, if any, equity in the property and the attitude of the Queensland Housing Commission, as deposed to by the bankrupt, is that it will not	allow his wife to acquire from the official Trustee his half	interest in the property. He is concerned that he and his
family will be turned out of the house and will in the circumstances be without shelter and accommodation. If an order was made discharging him from his bankruptcy, it would still leave the question of the dealing with the interest in the house property at Monto to be determined between the Official Trustee, his wife and the Queensland Housing Commission; so that problem would not be immediately resolved as the bankrupt thought.
On the material, there really is no other reason and certainly no cogent reason put forward as to why the bankrupt ought to be discharged at such an early point in time. The Official Receiver appears and submits that the case is a marginal one and that he neither supports nor opposes the making of the order. However, a substantial creditor appears and does oppose an early discharge in circumstances where no dividend has been paid.
In the absence of some cogent reason beyond that which has been proffered, I am not satisfied in the exercise of my discretion that a discharge should be granted at this point in time. That does not mean, of course, that an application cannot be made in the future should some reason arise in the personal circumstances of the applicant whereby the court may be convinced that the discharge should at that
time be made. The application is, therefore, dismissed.

preceding pages are a true copy of the	I certify that this and the two (2)
reasons for judgment herein of the Honourable Mr. Justice Cooper.
Date:  7 April, 1992

Associate