Re Benda, R.C. v. Ex parte Benda, R.C. [1985] FCA 166

Re Benda, R.C. v. Ex parte Benda, R.C. [1985] FCA 166

The bankrupt contracted debts provable in bankruptcy by undertaking personal guarantees, and did not demonstrate reasonable or probable grounds of expectation of being able to pay those debts if called upon. Therefore, s.150(6) precludes immediate discharge, but given the circumstances, a suspended discharge is justified.

Parties
Bankrupt / Applicant: Robert Charles Benda
Jurisdiction
Australia
Judgment Date
26 April 1985
Procedural Posture
Bankruptcy Application / Application for Discharge From Bankruptcy
Outcome
Order of discharge granted, operation suspended until 8 August 1985.
Legal Topics
Discharge From Bankruptcy, Liability as Guarantor, Provable Debts, Exercise of Court's Discretion
Bankruptcy Discharge From Bankruptcy Liability as Guarantor Provable Debts Exercise of Court's Discretion

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Parties

Robert Charles Benda

Bankrupt / Applicant

Procedural Posture

Bankruptcy Application / Application for Discharge From Bankruptcy

Legal Issues

  1. 1 Whether the bankrupt's conduct fell within para 150(6)(c) of the Bankruptcy Act
  2. 2 Whether the bankrupt's liability as guarantor was a 'debt provable in the bankruptcy'
  3. 3 Considerations relevant to exercising discretion under s.150 for early discharge

Ratio Decidendi

The bankrupt contracted debts provable in bankruptcy by undertaking personal guarantees, and did not demonstrate reasonable or probable grounds of expectation of being able to pay those debts if called upon. Therefore, s.150(6) precludes immediate discharge, but given the circumstances, a suspended discharge is justified.

Court Disposition

Order of discharge granted, operation suspended until 8 August 1985.

Orders

  • Order of discharge of the bankruptcy of Robert Charles Benda, suspended until 8 August 1985.