Re Weiss, Zdenek - [1980] FCA 122

Re: ZDENEK WEISS
No. 293 of 1978
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
McGregor J.

CATCHWORDS

Bankruptcy - application for discharge - principles to be considered - Litigation pending against bankrupt - Proofs of alleged Debts the subject of such litigation not yet admitted or rejected - appeals against suspension and cancellation of practising certificate of bankrupt not yet heard - litigation and appeals may provide information bearing on relevant conduct of bankrupt.

Bankruptcy Act 1966 (Cth.) ss. 55 150

Legal Practitioners Act 1898 (N.S.W.) -ss. 61, 71.

HEARING

SYDNEY

#DATE 3:9:1980

ORDER

1. The application for discharge is refused.

2. The bankrupt is to pay the Official Receiver's costs of and incidental to this application.

JUDGE1

On 28 April 1978 ZDENEK WEISS pursuant to his own petition presented under Bankruptcy Act 1966 (the Act) s.55 became a bankrupt (and is referred to thus hereafter). On the 11 October 1979, he, relying on s.150 of the Act, made application for an order for discharge.

It will be convenient shortly to trace the history of the bankrupt to date of sequestration relying on bankrupt's evidence for this purpose, but with reference to other sources.

The bankrupt was born in Czechoslovakia in approximately the year 1929. He was brought up there on farming property. He came to this country as a migrant in January 1948. He followed various avocations including that of textile mechanic, a supplier of firewood by contract and timber cutting in this country. He became eventually a registration clerk for a firm of Solicitors in Sydney. He successfully completed his matriculation in 1956 or 1957. He enrolled in the Solicitors Admission Board course. He completed this course and was admitted as a Solicitor of the Supreme Court of the State of New South Wales about 1967 and has worked as a Solicitor continuously up to the time of his suspension, to be referred to hereafter. His practice has been mostly conveyancing and has included working for developers of real estate.

Eventually he had working for him some ten or twelve employees and by 1970 himself had acquired not inconsiderable real property and some motor vehicles. He acquired knowledge and had experience personally as a land developer. He became acquainted with a Mr. Pheloung, a Real Estate Agent trading in the Dee Why area. In 1969 or 1970 and apparently to carry on the business of a land developer, a Company, Omnipol Pty. Ltd. (Omnipol) was incorporated by W.B. Pheloung and the bankrupt. Subsidiary companies were also formed or acquired by Omnipol. The bankrupt and Pheloung were the only directors of the company. The bankrupt and Pheloung and his family were the sole shareholders. The object of this company was, as the Official Receiver's affidavit stated, to build home units at Collaroy, Dee Why and Narrabeen. Later, it undertook this kind of activity in Orange. Generally it was to engage in the…

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.

Continue reading Re Weiss, Zdenek

Details

AGLC: Re Weiss, Zdenek [1980] FCA 122
Case: [1980] FCA 122
Decision Date: 03 SEPTEMBER 1980

CaseChat Overview and Summary

The case involves an application for discharge from bankruptcy by the bankrupt, Zdenek Weiss. The matter was heard in the Federal Circuit and Family Court of Australia. The primary dispute centred around the bankrupt's application for a discharge from bankruptcy, which was contested due to ongoing litigation against him and pending appeals against the suspension and cancellation of his practising certificate.

The court was required to consider the principles applicable to granting a discharge from bankruptcy, especially in light of the litigation and appeals. The key issues were whether the ongoing litigation and appeals could provide information bearing on the bankrupt's conduct and whether the proofs of alleged debts, which were the subject of such litigation, should be admitted or rejected before the discharge was considered.

The court concluded that the ongoing litigation and appeals were relevant as they could shed light on the bankrupt's conduct and integrity. Since the proofs of debt had not yet been admitted or rejected and the appeals had not been heard, the court determined that it was not yet in a position to make a final assessment of the bankrupt's conduct. Consequently, the application for discharge was refused, and the bankrupt was ordered to pay the Official Receiver's costs of and incidental to this application.

Orders

Orders of the court

1. The application for discharge is refused.

2. The bankrupt is to pay the Official Receiver's costs of and incidental to this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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