Re Main, K.J. v. Ex parte Main, K.J. [1987] FCA 340

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA

No. 523 of 1985 RE: KEVIN JOHN MAIN

BANKRUPT -

Applicant

CORAM: FRENCH J. 8 JUNE 1987

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Kevin John Main under s.150 of

the Bankruptcy Act fox discharge from his bankruptcy.

He became a bankrupt on his own petition on 14 November 1985. The trustee's report, which is not contested in respect of any material facts, discloses that at the date of bankruptcy he was 34 years of age, separated from his wife and in receipt of unemployment benefits of $185.00 per fortnight, from which he paid

rent of $70.00 pex fortnight.

He was married in February 1982 and separated from his wife for a short time but, at the date of bankruptcy, was living with his wife and in receipt of unemployment benefits. I should say in relation to the separation, that it appears that at his first intexview Mr Main indicated that he was separated but

subsequently confixmed that he had reconciled with his wife.

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From 1980 until 1983 he was employed as bar manager at Cleo's Tavexn in Fremantle. During the period of his employment he contracted bankcard debts, being a debt for the hire of a motor vehicle, and in 1982 entered into an agreement for the purchase of a Mitsubishi Sigma motor vehicle for $14,100.00. That was suxxendered a short time aftexrwards and sold by a finance company,

leaving a shortfall of $4,010.00.

He also listed a debt of $636.00 on his statement of affairs for the supply of beer but now says that that is, in fact, a debt owed by a company, Naizet Pty Ltd trading as Cleo's Tavern,

which was owned by relatives of his wife.

After ceasing employment with Cleo's Tavern in 1983, Mx Main worked as a chef or barman for the next 20 months in Kewdale,

Meekatharra and Halls Creek.

In October 1985 he retuxned to Perth and registered for unemployment benefits and has been in receipt of those benefits

since that date.

After he retuxned to Perth his creditoxs were pressing for payment of their debts and ultimately he filed his petition on

14 November.

Mr Main claims that the main cause of his bankruptcy was

excessive use of credit facilities and that view is accepted, it

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seems, by the Official Trustee with, of course, the additional factor of his unemployment contributing to his inability to meet

his financial obligations.

There is no suggestion that his conduct since the date

of bankruptcy has been other than satisfactory.

No offences have been proved to have been committed by him and there are no matters arising under sub-s. (6) of s.150 which would provide sufficient reason for refusal or suspension of

an order of discharge.

Creditors have been informed of the fact of the

application, as appears from an affidavit on the file.

His statement of affairs disclosed assets totalling $209.00 and liabilities totalling $6,924.00, although that must be read in the light of his subsequent statement about the amount of

$636.00 for the supply of beer.

The liabilities as listed, showed two unsecured creditors fox Bankcaxd, $1,457.00, one unsecured creditor for the shortfall on the surrendered vehicle, $4,010.00 and two unsecured creditors for goods supplied, $1,456.00. There have been no

proofs of debt lodged.

The realisations have been nil. There are no unrealised

assets in the estate.

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It appears also that there are no funds in the estate to meet any official fees ox costs of administration and no funds

held to enable payment of a dividend.

In his affidavit sworn on 1 April 1987, in support of his application for discharge, Mr Main says that he and his wife have been offered a Homeswest loan at a very low vate of repayment. They presently pay $160.00 a fortnight by way of rent. Homeswest, which would be prepared to make available a home for purchase by them, will not, however, provide assistance to an undischarged bankrupt. This is confirmed by a letter of 19 March 1987 addressed to Mr Main from the Regional Manager of Homeswest,

which says:-

"As per oux telephone conversation, I wish to confirm that Homeswest's policy is that purchase assistance will not be provided to an undischarged bankrupt.

Applications are accepted but the applicants must have

dischaxged their bankruptcy when their turn is reached fox assistance."

Mr Main, in his affidavit, says that he and his wife are having theix first child and to be provided with the home loan

assistance would start them on a new life for the family.

Homeswest would make them pay their income into the bank and would take money out of the bank first to make sure that the

loan would be paid back.

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Mr Main says in his affidavit that he 1s 36 years of age and it may be the last time that he and his wife are offered a

loan at such a low interest rate.

In the ordinary course he would have been discharged

from his bankruptcy by operation of law 1n November 1988.

The Couxt does not lightly entertain applications for discharge prior to the expiry of the statutory period set out in the Act. However, in my opinion, in this case there is no compelling reason of commercial morality or public interest that would militate against the grant of an order of discharge. There is, however, a strong private interest on the part of the bankrupt fox securing a discharge and it is, in my opinion, a legitimate

basis for making the order sought.

The circumstances of the bankruptcy do not suggest that

his discharge will put potential creditors at risk.

There is no question of his entering into a business on his own account and nothing in his history indicates that he has undextaken private commercial activities in the past ox is likely

to do so in the future.

In the cixcumstances, therefore, I am prepared to make the oxdex sought. I will order that Kevin John Main be discharged

from his bankxuptcy with effect from today's date.

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I certify that the preceding five (5)

pages are a true copy of the Reasons for Judgment herein of his Honour

My Justice French. ' iN a Associate: ¢ Ly.2 SS8-ro NA Wks ,

Date: G 6.3?

Mr K.d. Main appeaxed in person. Mr O'Driscoll appeared for the Official Receiver Date of Hearing: 8 June 1987

I Date of Judgment: 8 June 1987 4 i