CATCHWORODS BANKRUPTCY - application for leave to agischarge - interim relief sought - period of bankruptcy - whether can extend s.149(12). Bankruptcy Act s3.30'1)(b), 149 RE: WILLTAM MOORE EX PARTE: THE NOMINAL DEFENDANT PETITION NO. CQ10 OF 1982 PINCUS J. BRISBANE 28 JUNE 1985 enter fora objection to jurisdiction to lengthen period under IN THE FEDERAL COUPT GF AUSTRALIA ) GENERAL DIVISiC¥ ) PET NO. CG10 of 1982 BANKRUPTCY DISTRICT OF THE SOUTHERN } DISTRICT OF THE STATE OF OUEENSLAND ) RE: WILLIAM MOORE EX PARTE: THE NOMINAL DEFENDANT JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 28 JUNE 1985 WHERE MADE: BRISBANE THE COURT ORDERS THAT: L. Application for interim relief dismissed. 2. Application for leave to enter objertion dismissed. NOTE: Settlement and entry of orders is dealt with in Order of the Federal Court Rule tal IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISTON ) PET NO. CQ10 of 1982 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ) RE: WILLIAM MOORE EX PARTE: THE NOMINAL DEFENDANT PINCUS J. 28 JUNE 1985 EX TEMPORE REASONS FOR JUDGMENT This is an application made by the MNominai Defendant (Queensland) for leave to enter an objection to the discharge of the bankrupt pursuant to 5.149 of the Bankruptcy Act 1964, in which the applicant seeks interim relief. The apolication has been served on the bankrupt, but the affidavit of Michael Gerard Wadley discloses that service was effected only on 26 June 1985, two days ago. Counsel for the applicant does not centend that the service was within sufficient time to enable the bankrupt reasonably to resist today, and, in any event, Mr Wadley says that he had a conversation with the bankrupt today in which the bankrupt was told that the application would be adjourned for twa weeks. Although the conversation deposed to sv itt Wadley would not necessarily have given the bankrupt the wupre-sion that he should not appear today, 1t seems to me that i have to assume that he would have taken it that the substantive application would not proceed The material shows that the applicant 15 the only creditor, being owed a large sum of money. The bankrupt became so onl July 1982 on his own petition, and by virtue of the Act would be discharged, ordinarily, three years from that date, l.e. 1n two day's time. That follows from s.149(1), which reads: - "Subject to this section, a person who becomes a bankrupt after the commencement of this section 1s, by force of this seccion. unless sooner dischargea in accordance with section 150, discharged from bankruptcy upon expiration of 3 years from the date of the bankruptcy." The difficulty for the applicant is that by the time the period of two weeks mentioned to the bankrupt expires, if nothing else 1s done, s.149{1i) will have done its work, and discharged the bankrupt from bankruptcy. There is no generai power in the Act to vary its operation, but there is power under s.37 to vary the operation of orders. However, there is no sequestration order here, and in any event s.37(2) expressly exciudes sequestration orders. The material discloses some merit in the application to enter an objection, andas a matter of discretion I would be inclined to give the applicant interim relief, 1f able to do so. That 1s, although counsel for the applicant candidly admits that 1t comes to the Court very late, if there were turisdiction to do so I would make an order holding things in statu quo for the per1lod of two weeks desired. The question 1s whether I have any power to do that. I have received assistance, not only from Miss Wadley, as counsel for the applicant, but From Mr A.H. Carrick, the Acting Official Receiver. Mr Carrick, although formally adopting a neutral role, has suggested to me I have no jurisdiction to make any order of the kind sought. The first of the two bases upon which the matter was put on behalf of the applicant was that I might make an interim order under s,149(8). However, 1t seems cléar, because of the sub-section's reference to a period exceeding five years, that I cannot do so. Secondly, it was said that I might make an order under 5.149(12), having the effect of lengthening the period of theee years mentioned in 5.149(1). The terms of s.149'12) are as follows: - "The Court may, at any time before the discharge of a bankrupt, on the application of the Registrar, the Inspector-General, the trustee or a creditor, direct that the bankrupt shall nor te discharged from bankruptcy by virtue of this section." The submission made by Miss Wadley was thar T might properly apply the section in such a way as to achieve a temporary suspension of the operation of s.149(1). Mt Carrick, on the other hand, submitted that s.149(12) cannot have only a wartial operation, and that 1f an order is made under it, then 5.149 becomes irrelevant: so far as the date cf the Dbankrupt's discharge is concerned, there 1s then no time timit, and he must apply for discharge under s,150. T have noted that Toohey J. had a suvcerficially similar matter before him in the case of Re Mercovich ('inreported, 27 May 1985) where a holding order had been made by the Supreme Court extending beyond five years the period when objection would expire, to enable the hearing of a substantive application. However, in that case, advantage was able to be taken of the fact that there was an objection from the Official Receiver and 1t was possible to extend that under s.149(8) so as to preserve the position. In this case, there is no objection entered, and, in any event, s.149(8) does not help for the reason i have already mentioned. The question then becomes whether s.149(12) should be read as 1f it said:- "1... direct that the bankrupt shall not he discharged from bankruptcy by virtue of this section until the date specified in the direction." The submissions made by Miss Wadley would have me so read it. Mr Carrick's contention, on the cther hand, 1s that the provision should be read quite literally: that I way make a direction under 1b only if the consequence 15 intended that s.149 have no operation henceforth. I have not been referred tc any authority with respect to the point just mentioned, but I have come to the conclusion that the contention made by Mr Carrick 1s correct, and that I cannot make what might be called a holding order uncer s.149(12), although I would, as I have indicated, do it if I had the power. card Other suggestions were made, more faintly, as to sources of power. The only one which I should mention 1s that attention was drawn to s.30(1)(b), which permits the Court to make orders of an anterlocutory kind. In my view, the provision does not assist here, because the order sought could not be described as one, "necessary for the purposes of carrying out or giving effect to this Act..." It would rather be one designed tuo circumvent the effect of s.149(1) which, as I have mentioned, achieves the result that there is an automatic discharge unless an order 15s made under the later sub-sections. I cannot real that provision - that 15, s.143(1) - as subject also to a power to extend the period of bankruptcy for a short or long time under 5.30. It may be that there 1s a lacuna in the Act, but I do not think the method of meeting the difficulty suggested by the applicant is correct, nor have I been able to see@ that any other provision of the Act allows me to make an order exterding the period of bankruptcy for a short time, pending the hearing of an application for leave to enter an objection. I should add that it was not contended by the applicant that I could hear the principal application for leave today. lt seems clear in the circumstances that I cannot, pecause of the indication given to the bankrupt, mentioned above. I therefore dismiss the application for interim relief. Counsel has indicated that in consequence the principal application will not be pursued and I also dismiss the application for leave to enter 1 at - . hha cartity 7' ti ' ly Q an objection. judgment heen cr ras iioncur 6 og Mr, Justice Pincus Ze ue t Aes S/R Assoc tate Dated