Re Brown, A.G. Ex Parte Kangyo Dai-Ichi Australia Pty Ltd [1986] FCA 191

Re Brown, A.G. Ex Parte Kangyo Dai-Ichi Australia Pty Ltd [1986] FCA 191

The Court had power to hear and determine ex parte a creditor's application for leave to enter an objection under para.149(3)(c) because the Bankruptcy Rules do not impose a general service requirement, r.102 contemplates applications where service is not intended, and r.49(2) indicates that notice of the objection and any order granting leave may be served after the event. In the circumstances, including attempted service, the imminent expiry of the three-year period, the applicant's status as creditor, the bankrupt's undischarged status, and material supporting an objection under para.149(4)(d), it was proper to grant leave.

Jurisdiction
Australia
Judgment Date
16 May 1986
Procedural Posture
Bankruptcy Application for Leave to Enter an Objection to Discharge / Reasons for Judgment After Leave Granted Ex Parte
Outcome
Leave granted to the applicant to enter an objection to the bankrupt's discharge from bankruptcy.
Legal Topics
['objection to Discharge From Bankruptcy' 'ex Parte Application' 'service of Application' 'automatic Discharge From Bankruptcy' "creditors' Rights"]
['bankruptcy Law'] ['objection to Discharge From Bankruptcy' 'ex Parte Application' 'service of Application' 'automatic Discharge From Bankruptcy' "creditors' Rights"]

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Procedural Posture

Bankruptcy Application for Leave to Enter an Objection to Discharge / Reasons for Judgment After Leave Granted Ex Parte

Legal Issues

  1. 1 ["Whether the Court may hear and determine ex parte an application by a creditor for leave to enter an objection to a bankrupt's discharge under para.149(3)(c) of the Bankruptcy Act 1966 where the bankrupt has not been served." "Whether a creditor may seek leave to enter a further objection after the three-year period in s.149(1) where a trustee's objection remains in force and the bankrupt has not been discharged." "Whether the applicant had shown a sufficient basis for leave to enter an objection based on the bankrupt's conduct under para.149(4)(d)."]

Ratio Decidendi

The Court had power to hear and determine ex parte a creditor's application for leave to enter an objection under para.149(3)(c) because the Bankruptcy Rules do not impose a general service requirement, r.102 contemplates applications where service is not intended, and r.49(2) indicates that notice of the objection and any order granting leave may be served after the event. In the circumstances, including attempted service, the imminent expiry of the three-year period, the applicant's status as creditor, the bankrupt's undischarged status, and material supporting an objection under para.149(4)(d), it was proper to grant leave.

Court Disposition

Leave granted to the applicant to enter an objection to the bankrupt's discharge from bankruptcy.

Orders

  • ['Pursuant to s.149 of the Bankruptcy Act 1966 the applicant have leave to enter an objection to the discharge of the bankrupt from bankruptcy in accordance with the notice of objection tendered to the Court and as amended by the Court.' 'The notice of objection be entered not later than 4.00 p.m. on 9 May 1986.'...