Re Skov, J. v. Ex parte Skov, J. [1994] FCA 581

Re Skov, J. v. Ex parte Skov, J. [1994] FCA 581

The Court lacked jurisdiction and power to order the applicant's early discharge from bankruptcy because section 150 had been repealed and discharge was governed by the amended statutory code. However, the Court did have jurisdiction and power under section 178 of the Bankruptcy Act 1966 to review the trustee's pre-1 July 1992 decision of 10 October 1991 to object to the applicant's automatic discharge; if the objection were shown to be invalid, the applicant could be entitled to a declaration that he was discharged by operation of section 149(3) after three years from filing his statement of affairs.

Jurisdiction
Australia
Judgment Date
30 September 1994
Procedural Posture
Bankruptcy Application Under Section 178 of the Bankruptcy Act 1966 / Preliminary Objection; Application for Discharge Dismissed in Part and Remaining Relief Adjourned for Hearing on the Merits
Outcome
Application dismissed insofar as it sought an order that the applicant be discharged from bankruptcy; remaining relief adjourned for hearing on the merits, with costs of the preliminary objection reserved.
Legal Topics
['discharge From Bankruptcy' 'trustee Objection to Automatic Discharge' 'review of Trustee Decision' 'bankruptcy Act Amendment Act 1991']
['bankruptcy'] ['discharge From Bankruptcy' 'trustee Objection to Automatic Discharge' 'review of Trustee Decision' 'bankruptcy Act Amendment Act 1991']

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Procedural Posture

Bankruptcy Application Under Section 178 of the Bankruptcy Act 1966 / Preliminary Objection; Application for Discharge Dismissed in Part and Remaining Relief Adjourned for Hearing on the Merits

Legal Issues

  1. 1 ["Whether the Court had jurisdiction or power to order the applicant's discharge from bankruptcy after commencement of section 27 of the Bankruptcy Act Amendment Act 1991." "Whether the Court had jurisdiction or power under section 178 of the Bankruptcy Act 1966 to review the trustee's decision of 10 October 1991 to object to the applicant's automatic discharge from bankruptcy." "Whether the trustee's objection had lapsed or could still be reviewed for the purpose of determining the applicant's statutory discharge date."]

Ratio Decidendi

The Court lacked jurisdiction and power to order the applicant's early discharge from bankruptcy because section 150 had been repealed and discharge was governed by the amended statutory code. However, the Court did have jurisdiction and power under section 178 of the Bankruptcy Act 1966 to review the trustee's pre-1 July 1992 decision of 10 October 1991 to object to the applicant's automatic discharge; if the objection were shown to be invalid, the applicant could be entitled to a declaration that he was discharged by operation of section 149(3) after three years from filing his statement of affairs.

Court Disposition

Application dismissed insofar as it sought an order that the applicant be discharged from bankruptcy; remaining relief adjourned for hearing on the merits, with costs of the preliminary objection reserved.

Orders

  • ['The application, insofar as it seeks in paragraph 1 an order that the applicant be discharged from bankruptcy, is dismissed.' 'The application, insofar as the relief claimed in paragraphs 2 and 3 of the application, will be adjourned to the bankruptcy list for 1 November, 1994 for hearing on its merits.' 'The...