Re Tingley, W.F. Ex parte Tingley, W.F. v Totterdell, G.F

[1985] FCA 458

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NOT INTENDED FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
GENERAL DIVISION	1 No. 292 of 1985

BANKRUPTCY DISTRICT 1

OF THE STATE OF	)
WESTERN AUSTRALIA	1
RE : WILLIAM FREDERICK TINGLEY

Bankrupt

M PARTE: WILLIAM FREDEXICK TINGLEY

Applicant

and

GEOFFREY FRANK	T O m D E L L
J ~ "I-

?\ \ '\

Respondent

CORAM:	TOOHEY J.	l
22 July 1985	I

This application is based on 6.154 of the Bankruptcv Act

1966 which empowers the Court where it is satisfied inter alia

that, in the case of a debtor's petition the petition ought not to

have been presented, to make an order annulling the bankruptcy.

In my view, Mr. Tingley's petition ought not to have

been presented because there was in existence at the time an order

of the Family Court of Western Australia restraining him from

presenting a petition pursuant to 6 . 5 5 of the Bankruptcy Act. If

any question arises as to the authority of the Family Court to

make such an order, it is not a question to be resolved by this

Court sitting in bankruptcy. There is an order of the Family

2 .

Court evidenced in the sealed order which has been tendered to m .

In those circumstances, %t seems to me that the application properly falls within 6.154.

As Mr. Black points out, I have a discretion in the

matter. But it seems to me that I should exercise that discretion

in favour of the applicant for two reasons. The first is that it

tends to resolve, to some extent at any rate, the position of the

applicant in relation to the order of the Family Court. I say

that on the assumption that the petition was filed in ignorance of

the order of that Court. Second, Mr. Black on behalf of the

bankrupt, has given assurances to Mr. Totterdell, the present

trustee, and to the creditors generally of his client's

willingness to co-operate in any sequestration proceedings that

may be taken by any creditor. In those circumstances I propose to

exercise my discretion and to make an order annulling the

bankruptcy. That will be the order of the Court.

I certify that this and the preceding

page are a true copy o f the Ex Tempore

Reasons for Judgment herein of his

Honour Mr. Justice Toohey