Re Shepherd, B.S. [1985] FCA 20

Re Shepherd, B.S. [1985] FCA 20

The applicant, Brian Stanley Shepherd, contracted a provable debt to the opponent, Peter Anthony Greenland, without reasonable or probable grounds of expectation of being able to pay it at the time of contracting, and failed to disclose his undischarged bankrupt status when obtaining credit. These facts establish the grounds in s.150(6) of the Bankruptcy Act 1966, compelling the Court to refuse immediate discharge and to prioritize the interests of public and commercial morality over the applicant’s personal interests and creditor preference proposals. The application for discharge is refused.

Parties
Applicant/bankrupt: Brian Stanley Shepherd; Opponent/petitioning Creditor: Peter Anthony Greenland
Jurisdiction
Australia
Judgment Date
13 February 1985
Procedural Posture
Application for Discharge From Bankruptcy / Hearing and Final Determination at First Instance
Outcome
Application for discharge from bankruptcy dismissed
Legal Topics
Discharge From Bankruptcy, Successive Bankruptcies, Grounds for Opposing Discharge, Creditor's Rights, Commercial Morality
Bankruptcy Discharge From Bankruptcy Successive Bankruptcies Grounds for Opposing Discharge Creditor's Rights Commercial Morality

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Parties

Brian Stanley Shepherd

Applicant/bankrupt

Peter Anthony Greenland

Opponent/petitioning Creditor

Procedural Posture

Application for Discharge From Bankruptcy / Hearing and Final Determination at First Instance

Legal Issues

  1. 1 Whether applicant should be discharged from bankruptcy under s.150 of the Bankruptcy Act 1966
  2. 2 Whether applicant contracted a debt without reasonable prospect of payment (s.150(6)(c))
  3. 3 Whether applicant obtained credit without disclosing his undischarged bankrupt status

Ratio Decidendi

The applicant, Brian Stanley Shepherd, contracted a provable debt to the opponent, Peter Anthony Greenland, without reasonable or probable grounds of expectation of being able to pay it at the time of contracting, and failed to disclose his undischarged bankrupt status when obtaining credit. These facts establish the grounds in s.150(6) of the Bankruptcy Act 1966, compelling the Court to refuse immediate discharge and to prioritize the interests of public and commercial morality over the applicant’s personal interests and creditor preference proposals. The application for discharge is refused.

Court Disposition

Application for discharge from bankruptcy dismissed

Orders

  • The application for an order of discharge from bankruptcy be dismissed.
  • The applicant pay the costs of the opponent, Peter Anthony Greenland, incurred in relation to the application.