Van-Minnen (nee Huson) ex parte Harrison [1999] FCA 43

Van-Minnen (nee Huson) ex parte Harrison [1999] FCA 43

The applicant's statement of affairs was not received by the Registrar in Bankruptcy when it was given to the trustee on 23 October 1995 and was filed at the Registry only on 19 September 1996. Following Nilant v Macchia, the Court could not abridge the automatic discharge period under s 149(4) by using s 33,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 February 1999
Procedural Posture
Bankruptcy Application / Application for Orders Recognising Filing of Statement of Affairs and Abridging Bankruptcy Period
Outcome
Application refused.
Legal Topics
['discharge of Bankrupt' 'statement of Affairs' 'filing With Official Receiver' 'abridgment of Time' 'declaratory Orders']
['bankruptcy'] ['discharge of Bankrupt' 'statement of Affairs' 'filing With Official Receiver' 'abridgment of Time' 'declaratory Orders']

Source-derived case record

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Procedural Posture

Bankruptcy Application / Application for Orders Recognising Filing of Statement of Affairs and Abridging Bankruptcy Period

Legal Issues

  1. 1 ["Whether the filing of the applicant's statement of affairs with the trustee could be recognised for the purposes of s 54 of the Bankruptcy Act 1966 (Cth)." 'Whether the Court could abridge the time limited by s 149 of the Bankruptcy Act 1966 (Cth) for the period of bankruptcy.' 'Whether the Court could make a declaration under s 30 of the Bankruptcy Act 1966 (Cth) that the statement of affairs was effectively filed for the purposes of s 149(4).']

Ratio Decidendi

The applicant's statement of affairs was not received by the Registrar in Bankruptcy when it was given to the trustee on 23 October 1995 and was filed at the Registry only on 19 September 1996. Following Nilant v Macchia, the Court could not abridge the automatic discharge period under s 149(4) by using s 33, because that period is not a time for doing an act or thing. Nor could the declaratory power in s 30 be used to achieve indirectly what was unavailable under s 33, particularly where the statement had been filed with the trustee rather than filed at the Registry. The application therefore had to be refused.

Court Disposition

Application refused.

Orders

  • ['The application be refused.' 'There be no order as to costs.']