Re Smith, G.R. & Anor

JUDGMENT NO. I.I.~..:/....&Z

m THE FEDERAL COURT OF AUSTRALIA 1
GENERAL DIVISION 1
BANKRUPTCY DISTRICT OF THE

) No. QB657 of 1988

OF OUEENSLANB )

RE : ROBERT SMITH and

PEGGY ELIZABETH SMITH

(Applicants)

EX PARTE: -ME ROBERT SMITH and

J'EGGY ELIZABETH SMITH

MINUTES OF ORDER

PINCUS J.
14 DECEMBER 1990

WHERE MADE: BRISBANE
THE COURT ORDERS THAT:

1. Each applicant be discharged from bankruptcy forthwith.

l&2!iz: Settlement and entry of orders is dealt with in Rule

124 of the Bankruptcy Rules.

JN THE FEDERAL COURT OF AUSTRALIA

DIVISION 1

No. QB657 of 1988

)

ME ROBERT SMITH and

PEGGY ELIZABETH SMITH
(Applicants)

EX PARTE: ERAEMB ROBERT SMITH and

ELIZABETH SMITH

m: PINCUS J.
W: BRISBANE

m: 14 DECEMBER 1990

FX TEMPORE REASONS FOR JUDCMENT

In this matter Mr. and Mrs. Smith have been made bankrupt on 3 June 1988 and the automatic discharge would occur on 13 June 1991.

The affidavit material which is unusually

comprehensive, if accepted on face value, suggests that Mr.

Smith suffered, as some other people in the community have, from the decline in the Australian dollar against the Swiss
franc. He also complains of the treatment he received from
AGC and from his former solicitors.

The essential point, as it seems to me, is that Mr. Smith Bays that his bankruptcy was not his fault but due to misfortune, and he does not say that merely in a general way, but gives a great deal of detail to explain precisely how the

misfortune occurred. It seems to me that in the absence of any evidence to the contrary or anything which appears to be improbable in the version of events given, I should accept what he says.

I would add that it is perhaps a little unusual to give an early discharge in circumstances of this kind where the debts were quite large and it may be, of course, that if
Mr. Smith goes back into business he will have more bad luck -
one hopes not - but the circumstances are such as it seems to
me that the application for discharge should he granted as to
each and without conditions.

The order will be that each applicant be discharged

from bankruptcy forthwith.

I certify that this and the preceding page are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

r . ~ssociata

- --c--

Date 14 . I ? .Cjo

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Smith, G.R. & Anor was heard. The applicants, Robert and Peggy Smith, sought an early discharge from their bankruptcy. The Smiths had been declared bankrupt on 3 June 1988, and their automatic discharge was scheduled for 13 June 1991. The legal issue before the court was whether the applicants were entitled to an early discharge from bankruptcy based on their contention that their financial predicament was due to misfortune rather than personal fault.

The court considered the affidavit material provided by the applicants, which was extensive and, if accepted, suggested that Mr. Smith's bankruptcy was due to his losses from the decline in the Australian dollar against the Swiss franc, as well as his dissatisfaction with the treatment he received from AGC and his former solicitors. Pincus J found that there was no evidence to contradict the applicants' version of events and nothing that appeared improbable. The judge accepted the applicants' account of how their misfortune occurred and determined that their bankruptcy was not due to personal fault but rather to circumstances beyond their control. Given these findings, the court was satisfied that the applicants were entitled to an early discharge from bankruptcy without conditions.

The court ordered that both applicants, Robert and Peggy Smith, be discharged from bankruptcy forthwith. The comprehensive affidavit material provided by the applicants, if accepted as true, demonstrated that their financial difficulties were not due to personal fault but rather to external misfortunes. The order for immediate discharge was made in recognition of the applicants' detailed account of their financial predicament and the lack of evidence suggesting otherwise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Smith suffered, as some other people in the community have,	from the decline in the Australian dollar against the Swiss
franc. He also complains of the treatment he received from AGC and from his former solicitors.
The essential point, as it seems to me, is that Mr. Smith Bays that his bankruptcy was not his fault but due to misfortune, and he does not say that merely in a general way, but gives a great deal of detail to explain precisely how the
misfortune occurred. It seems to me that in the absence of any evidence to the contrary or anything which appears to be improbable in the version of events given, I should accept what he says.
I would add that it is perhaps a little unusual to give an early discharge in circumstances of this kind where the debts were quite large and it may be, of course, that if
Mr. Smith goes back into business he will have more bad luck -
one hopes not - but the circumstances are such as it seems to
me that the application for discharge should he granted as to each and without conditions.