Re: Ward - [1988] FCA 859

i

CATCEWORDS

BANKRUPTCY - Application for an extension of period of bankruptcy to 8

years - incomplete public examination - pending criminal proceedings -

alternate power of examination provided for in the Act - discretion of

court in respect to discharge of bankrupts .

Bankruptcy Act 1966: Sections 69, 81, 149, 150
Re Francis Dennis Ward and Keith Reginald Knight

ex parte the Official Trustee in Bankruptcy
W 390 of 1983

PLACE : Sydney.

CORAM: Einfeld J.

DATE : 6 May 1988.
-

IN TEE FEDERAL COURT OF AUSTRALIA 1
1

DIVISION	GENERAL	1	No. W 390 of 1983
1
BANKRUPTCY DISTRICT IN TEE	1 1

STATE OF NEW SOUTH WALES

AND

THE

1 1

AUSTRALIAN CAPITAL TERRITORY 1

Re : FRANCIS DENNIS WARD and
-
REGINALD KEITE KNIGHT
Debtors
Ex parte TEE OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant

CORAM: Einfeld J.

DATE: 6 May 1988
PLACE: Sydney

MINUTE OF ORDERS

1. That the application be dismissed.

2. That the applicant pays the costs of the bankrupts

Note: Settlement and entry of these orders is dealt with in accordance
-
with Order 124 of the Bankruptcy Rules.

IN TEE FEDERAL COURT OF AUSTRALIA )
1
GENERAL DIVISION

) No. W 390 of 1983
1
BANKRUPTCY DISTRICT IN THE )
1
STATE OF NEW SOUTH WALES AND THE )
1

AUSTRALIAN CAPITAL TERRITORY )

- Re :
Debtors

Ex parte TAE OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant

CORAM: Einfeld J.

DATE: 6 May 1988
-
PLACE: Sydney

REASONS FOR JUDGMENT

The estates of Francis Dennis Ward (Ward) and Reginald Keith Knight
(Knight) (the bankrupts) were sequestrated on 9 May 1983. Under the terms of section 149 (1) of the Bankruptcy Act 1966 (the Act) automatic

discharges from the bankruptcies would have taken place on 9 May 1986.

Eowever, objections to their discharges were lodged and served in 1986

on the grounds of prejudice to the administration of the estates. It was

said then that the public examinations of the bankrupts had not been
able to be completed due to the currency of lengthy criminal proceedings against them. As a result the periods of bankruptcies were extended to 9 May 1988. The applicant now seeks a further three year

extension of the two periods of bankruptcy to 9 May 1991 on the same

grounds. This application is bound by section 149 ( 8 ) of the Act to be

taken and decided before 9 May this year.

The bankrupts have been committed to stand trial in the Supreme Court of

New South Wales on a number of charges relating to what is alleged to be

their "company stripping" activities during the years 1978 to 1980.
Their committals were on five charges of conspiring to defraud the

revenue (9.86 (l)(e) Crimes Act 1914) and five charges of conspiring to

prevent or defeat the execution or enforcement of a law of the
Commonwealth (s.86 (l)(b) Crimes Act 1914). They were also committed on

a number of charges relating to the fraudulent appropriation of company

property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 859
Decision Date: 6 May 1988

CaseChat Overview and Summary

The case of Re: Ward and Knight involved an application by the Official Trustee in Bankruptcy to extend the period of bankruptcy of Francis Dennis Ward and Reginald Keith Knight. The application sought to extend the periods of bankruptcy beyond the automatic discharge date of 9 May 1988 to 9 May 1991. The bankruptcy periods were initially extended to 9 May 1988 due to pending criminal proceedings against the bankrupts related to their alleged "company stripping" activities.

The legal issues before the court were whether the court should exercise its discretion to extend the periods of bankruptcy further and, if so, on what grounds. The court had to balance the need for further examination of the bankrupts to ascertain their assets against the potential prejudice to the bankrupts, who were facing criminal trials. The court also considered the authority for extending an already extended period of bankruptcy and the relevant criteria to be applied.

The court held that it would not extend the periods of bankruptcy further. It found that further examinations could be conducted after discharge under section 81 of the Bankruptcy Act. The court also noted that the bankrupts had not shown that further examinations were essential to the proper administration of their estates. Additionally, the court found that the bankrupts would likely not rely on the privilege against self-incrimination in any post-discharge examination.

In conclusion, the court dismissed the application and ordered the Official Trustee to pay the costs of the bankrupts. The court found that there was no sufficient justification to extend the periods of bankruptcy further given the circumstances of the case.

Orders