Re Rohde, C.W

[1993] FCA 389

387    (7 9 3

JUDGMENT No. ........ ........ .. I ........ ....

CATCHWORDS

BANKRUPTCY - automatic discharge at the expiry of three years from filing of statement of affairs - accidental failure to file statement of affairs given to trustee - discussion of absence of any reserve power in the Court to grant a discharge and suggestion amendment of the Act should be considered - power of Court to abridge statutory time under S. 33(l)(c) and grant declaratory relief under S. 30(l)(b).

Bankruptcy Act 1966 (Cth), ss. 30, 33 and 149

RE: COLIN WILLIAM ROHDE

NB 1898 of 1989

Burchett J.
Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) )

GENERAL DIVISION BANKRUPTCY DISTRICT ) NB 1898 of 1989

1

OF THE STATE OF NEW SOUTH WALES )

RE :  COLIN WILLIAM ROHDE

CORAM: Burchett J.
PLACE: Sydney

DATE : 27 April 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

This matter arises out of amendments to the Bankru~tcy

which appear to have the result that discharge from bankruptcy is effected automatically, in cases such as the present, at the expiry of the period of three years from the date on which the bankrupt's statement of affairs was filed, pursuant to an obligation to file a statement of affairs imposed by S. 54(1) of the Act. Under S. 54(1), a bankrupt is required within 14 days from notification of the sequestration

order to make out and file in the office of the Registrar for	the district in which the sequestration order was made a
statement of his affairs, and to furnish a copy of the statement to the trustee.
In the present case, the bankrupt did make out a statement of affairs, and did furnish a copy to the trustee, who would, if the normal practice which has developed had been followed, have filed the statement of affairs with the appropriate Registrar on behalf of the bankrupt. For some reason, which has not been elucidated and presumably amounted simply to a complete oversight, this was not done. The result is, on the face of it, very serious, since it means that the bankrupt who, in the normal course, would have been eligible for discharge in February of this year will have to wait till the expiry of three years from 1 December 1992, when the omission to file the statement of affairs was rectified by the trustee.
It appears that there is no reserve power for an application to be made, in such circumstances, to the Court for an order of discharge, rather than to have discharge occur automatically pursuant to S. 149. I find this surprising, and on the basis of what has been put to me in this case it would seem that the situation ought to be looked at by those responsible for recommending amendments to the Act. Traditionally, the Court has always had an ultimate control in matters of bankruptcy, in the interests alike of the
commercial community, the creditors, and the bankrupt. However, I have come to the conclusion that it is open to me,
though by a somewhat curious route, to cure the quite Draconian effect which the amendments to the Act, recently made, seem to have brought about. That route is by way of ss. 30 and 33 of the Act.
Under S. 33(l)(c), it is provided that the Court may extend, "before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act ... for doing an act or thing or abridge any such time". It seems to me that I have power, and that in these very special circumstances, where the evidence shows that the case is one in which, but for a technical lapse, discharge would already have occurred, I ought to abridge the time provided by S. 149(3) of three years from the date of the filing of the statement of affairs. I do accordingly abridge that time to a period of two months.
Having so abridged the time, I am empowered by S. 30(l)(b) to grant declaratory relief, for the purposes of carrying out or giving effect to the Act, and I make a declaration that the filing of the statement of affairs, which occurred on 1 December 1992, was an effective filing, for the purposes of S. 149(3)(a), effected by the trustee on behalf of the bankrupt, so that the bankrupt has fulfilled the requirement of filing his statement of affairs. I further declare that, by virtue of S. 149(3), the bankrupt is discharged.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate:  g%-&., ) 1 2 h a

Date: 9 June 1993

Solicitor for the Applicant:  Miss Sally Nash, of Messrs Sally Nash & Co.