Re Prowse, Linden John Ex Parte The Debtor [1981] FCA 264

Re Prowse, Linden John Ex Parte The Debtor [1981] FCA 264

A second application for discharge from bankruptcy on substantially the same facts and evidence as a prior unsuccessful application, without a substantial change in circumstances or genuinely fresh evidence, will be dismissed as an abuse of process. The evidence presented did not amount to fresh evidence as it could have been adduced previously with reasonable diligence.

Parties
Debtor: Linden John Prowse; Objectors: Objectors
Jurisdiction
Australia
Judgment Date
07 December 1981
Procedural Posture
Bankruptcy Application / Application for Discharge – Second Application After Earlier Refusal
Outcome
application dismissed
Legal Topics
Discharge From Bankruptcy, Fresh Evidence, Variation or Rescission of Orders, Repeat Applications, Abuse of Process
Bankruptcy Discharge From Bankruptcy Fresh Evidence Variation or Rescission of Orders Repeat Applications Abuse of Process

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Parties

Linden John Prowse

Debtor

Objectors

Objectors

Procedural Posture

Bankruptcy Application / Application for Discharge – Second Application After Earlier Refusal

Legal Issues

  1. 1 Whether the Court may entertain a second application for discharge on substantially the same evidence as a previous unsuccessful application, without a substantial change in circumstances.
  2. 2 Whether new evidence presented qualifies as 'fresh evidence' justifying re-opening the discharge application.

Ratio Decidendi

A second application for discharge from bankruptcy on substantially the same facts and evidence as a prior unsuccessful application, without a substantial change in circumstances or genuinely fresh evidence, will be dismissed as an abuse of process. The evidence presented did not amount to fresh evidence as it could have been adduced previously with reasonable diligence.

Court Disposition

application dismissed

Orders

  • Application for discharge dismissed.
  • Objectors' costs to be taxed and paid out of the bankrupt's estate.