Re Skov, J

[1994] FCA 915

Re: JORGEN SKOV
Ex Parte: THE ABOVENAMED
No. QB1030 of 1989
FED No. 915/94
Number of pages - 2
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Bankruptcy - review of trustee's decision to object to discharge of bankrupt - lack of co-operation by the bankrupt.

HEARING

BRISBANE, 21 November 1994
#DATE 21:11:1994

Solicitors for the Applicant: Hewlett and Co

Counsel for the Respondents: Mr S. Eleftheriou

Solicitors for the Respondents: M.J. Murray and Assoc.

ORDER

The Court Orders That:
1. The application be dismissed.
2. The applicant bankrupt pay the respondent trustee's costs of

and incidental to the whole of the application, including the hearings with respect to each of the orders sought in paragraphs 1 and 2 of the application.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

KIEFEL J The bankrupt in this matter seeks a review of the Trustee's decision to lodge an objection to the bankrupt's discharge. That objection was dated 10 October 1991. The question seems to be whether the Trustee's decision is, on acceptable material, shown to be unreasonable. The bases for the Trustee's decision (putting aside one issue relating to information provided as to the bankrupt's wife's business which, I think, the Trustee has conceded can be taken no further), are generally to be found in the lack of co-operation by the bankrupt and in his rendering a level of assistance being substantially less than is required by the Act.

1. The material shows that there was delay from the outset in the provision of his statement of affairs and which resulted in a delay overall of some three months in the administration of the estate. This is explained in part by the personal circumstances of the bankrupt and what is said to be a lack of knowledge, although an inference which I thought was open from the Trustee's affidavit was that there was a distinct level of disinterest in performing the bankrupt's obligations. The bankrupt's creditors were then not fully disclosed by him and this is said to be explained by the bankrupt's belief that some creditors were not those of him personally, but those of his company, and that he had overlooked some personal guarantees. The result, however, was that creditors of some magnitude (nearly $30,000.00) were not taken into account, almost one half of the total amount of creditors, and the Trustee was required to contact all known creditors to obtain a true position. Then the bankrupt appears to have understated his income by approximately one half, although he explains that this was only an approximation of his income since he had not then lodged his return. It does, however, require this court to accept that he had no real idea of his income, such that his estimate was in error by approximately 100 per cent.

2. Even if I were to accept that some of these matters are capable of the explanation advanced by the bankrupt, what I consider that it shows overall is that the bankrupt has not taken his obligations very seriously, and his approach has been one of disinterest and not one of performing his obligations when requested by the Trustee. It does not, I consider, amount to the level of co-operation required.

3. In these circumstances, I consider that the Trustee's decision in filing the notice of objection has not, in the circumstances, been shown to be unreasonable, and is one which could be said to be properly based.

4. Counsel for the Trustee also pointed to the fact of delay in bringing application with respect to the objection to discharge, but even if this were a matter properly to be taken into account, I do not think it is necessary to advert to it, save to comment that it is indicative generally of the approach of the bankrupt to which I have already referred.

5. In these circumstances, I dismiss the application.

6. As to costs, the order will be that the applicant bankrupt pay the respondent's trustees costs of and incidental to the whole of the application, including the hearings with respect to each of the orders sought in paragraphs 1 and 2 of the application.