Weiss, Re Z. Ex Parte Official Trustee - [1986] FCA 255

Re: ZDENEK WEISS
Ex Parte: OFFICIAL TRUSTEE IN BANKRUPTCY
No. W293 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
Burchett J.

CATCHWORDS

Bankruptcy - application for order directing that bankrupt shall not be discharged by virtue of s.149 - Principles which guide Court when dealing with such an application - Relevance of need for further investigation by trustee into bankrupt's conduct and assets - Applicability of business records provisions of Cwlth Evidence Act to correspondence file of bank.

Bankruptcy Act 1966, s.149

Evidence Act 1905, ss.7A, 7B, 7C, 7H

Vanguard Service Print v. Mercovich (unreported, Sweeney, Sheppard & Beaumont JJ., 20/9/85)

Re Reilly (1979) 23 A.L.R. 357

Re Kersten (unreported, Sheppard J., 11/3/86)

Re Palenkas; Ex parte Raymor (Brisbane) Pty. Ltd. (1982) 66 F.L.R. 115

Re Florance (unreported, McGregor J., 15/2/85)

Trade Practices Commission v. TNT Management Pty. Ltd. (1984) 56 A.L.R. 647

Matson v. The Official Trustee (unreported, Bowen C.J., Beaumont & Spender JJ., 19/5/86)

HEARING

SYDNEY

#DATE 27:6:1986

ORDER

THE COURT ORDERS AND DIRECTS THAT the bankrupt, Zdenek Weiss, shall not be discharged from bankruptcy by virtue of s.149 of the Bankruptcy Act 1966.

NB: Settlement and entry of orders is dealt with in Rule 124 of

the Bankruptcy Rules.

JUDGE1

Zdenek Weiss (Mr. Weiss), a solicitor, became a bankrupt on his own petition on 28 April 1978. By virtue of s.149 of the Bankruptcy Act 1966, in the events which have happened, it is common ground that, unless I make an order pursuant to sub-sec.(12), he will be statutorily discharged from his bankruptcy, at the expiry of a period which expires on 30 June 1986. The Official Trustee in Bankruptcy, as trustee of the estate of Mr. Weiss, has made application for an order under s.149(12) directing that Mr. Weiss shall not be discharged from bankruptcy by virtue of s.149.

S.149 makes provision for the statutory discharge of bankrupts, unless sooner discharged by an order of the Court, upon the expiration of three years from the date of the bankruptcy, or in certain cases where objections have been lodged at the expiration of five years. There are transitional provisions, which are relevant to the position in the present case, and there are special provisions, as for example in cases of second bankruptcies. There is provision for an extension of the period of five years, and an extension to 30 June 1986 was ordered by consent, in relation to Mr. Weiss. By sub-sections 12 and 13 of s.149 it is provided as follows:

"(12) The Court may, at any time before the discharge of a bankrupt, on the application of the Registrar, the Inspector-General, the trustee or a creditor, direct that the bankrupt shall not be discharged from bankruptcy by virtue of this section.

(13) In deciding whether to make an order under sub-section (12), the Court shall take into account such matters (if any) as are prescribed for 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.

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Details

Case: [1986] FCA 255
Decision Date: 27 JUNE 1986

CaseChat Overview and Summary

The case of Re Z. Ex Parte Official Trustee involves the Official Trustee in Bankruptcy applying for an order to prevent the discharge of Zdenek Weiss from bankruptcy under section 149 of the Bankruptcy Act 1966. The Official Trustee sought this order based on concerns regarding the bankrupt's conduct and assets, prompting further investigation. The central legal issue before the court was the determination of the principles that guide the Court when considering such an application, the relevance of the need for further investigation by the trustee into the bankrupt's conduct and assets, and the applicability of the business records provisions of the Commonwealth Evidence Act to the correspondence file of the bank.

The court examined the principles guiding the Court in these circumstances, underscoring the necessity for a comprehensive investigation into the bankrupt's conduct and assets before granting a discharge. The Court emphasised that the Official Trustee must demonstrate substantial grounds for suspicion or evidence of misconduct or concealment to justify withholding discharge. Furthermore, the court deliberated on the admissibility of the bank's correspondence file under the business records provisions of the Commonwealth Evidence Act, assessing whether it could be utilised as evidence in the proceedings. The court found that the Official Trustee had adequately demonstrated the need for further investigation and that the bank's correspondence file was admissible as business records.

Ultimately, the court ruled in favour of the Official Trustee, ordering that Zdenek Weiss shall not be discharged from bankruptcy. This decision was grounded on the necessity for further investigation into the bankrupt's conduct and assets and the admissibility of the bank's correspondence file as evidence. The final orders direct that the bankrupt shall not be discharged under section 149 of the Bankruptcy Act 1966, and the settlement and entry of these orders are governed by Rule 124 of the Bankruptcy Rules.

Orders

Orders of the court

THE COURT ORDERS AND DIRECTS THAT the bankrupt, Zdenek Weiss, shall not be discharged from bankruptcy by virtue of s.149 of the Bankruptcy Act 1966.

NB: Settlement and entry of orders is dealt with in Rule 124 of

the Bankruptcy Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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