re weld 5 a A NOT INTENDED FOR DISTPIPUTION Il THE FEDERAL CcurrT ; OF AUSTPALIA } GENEPAL DIVISION ) BANKEUPTCY DIETFICT ' OF THE STATE OF WESTERN AUSTRALIA } RE: PETER DEAN BASTOW Bankrupt EX PARTE: PETER DEAN BASTOW Wks. ae Applicant A \ CORAM: TOOHEY J. RE~ ~> i "PSS Le 24 June 1985 =P 1985 he oF ST 7, Me aa ' / Rad EX TEMPORE REASONS SUR" JUDGMENT A sequestration order was' hade against Mr. Bastow on 24 January 1984, so that in the ordinary course he would he discharged from bankruptcy in January 1987. He seeks an order for discharge roughly 18 months earlier than would be the case if the Bankruptcy Act 1966 took its course, The basis of the application lies, Mr. Bastow says, in the difficulties his position as a bankrupt places in the way of him getting employment. Also there is medical evidence provided by Dr. Kusel suggesting that a discharge from bankruptcy would reduce some of the stress he has been under. There is nothing in the Official Receiver s report to stand in the way of a discharge, nor have any creditors objected other than WA Seafood Exporters. The basis of that objection is three fold: hota ee ory Br ne ee ee ne ee mr re ee rae nee eae ee = ta (1) My. Bastow, after knowing himself to be insolvent, continued to trade and obtain credit of an amount exceeding $100; (2) He contracted a debt provable in bankruptcy without having at the time of contracting it any reasonable or probable ground for expectation of being able to pay it; (3) Within the six months preceding his bankruptcy he gave an undue preference to creditors. Mr. Orifici says that his client cannot adduce any evidence of those matters other than the evidence which is to be found in the record of public examination of Mr. Bastow. It may be that in a general sense the evidence shows that Mr. Bastow embarked upon the restaurant business without much prospect of being able to make it a profitable venture. It may be, too, that he contracted some debts without much prospect of being able to pay them. It may also be that in some respects, fairly limited respects it would appear, he may have given a preference to creditors by paying some in cash. These matters to which sub-s.150(6) refers are matters of some seriousness when they emanate from the Official Receiver's report. The report itself, by reason of the Act, provides prima facie evidence of statements obtained in it. If it emanates otherwise, for instance from a creditor, it seems to me there is an obligation upon the creditor to state with some precision the i res ral mects in which it is said the Act has been breached or, more specifically, in which sub-s.150(6) is said to arise. I appreciate the position of the creditor in this case in having difficulty in getting that evidence and heing compelled to rely upon the record of public examination. While a reasonably convincing case can be made out from that record of some conduct which in a general way falls within sub-s.150(6), Iam not persuaded that the creditor has made good the specific matters which the subsection requires to be established. At the same time, sub-s.150(9) gives the Court power to refuse to make an order of discharge, to make an order of discharge, or to make an order and suspend its operation. There are some unsatisfactory features of the conduct of the business which I think should be reflected in any order for discharge which I make. I am minded to make an order, because om the positive side it may assist Mr. Bastow in respect of employment and his condition generally; on the negative side there seems to be nothing to be gained from the point of view of the creditors in maintaining the bankruptcy. There is, however, an aspect of the commercial morality of the conduct of a business and also the interest of the community in respect of business ventures. I think I can best reflect that and also give effect to such evidence as does emerge from the record of public examination if I grant an order of discharge but suspend it for a period of three months. That is what I propose todo. There will be an order of discharge, suspended until 24 September 1985. I certify that this and the two preceding pages are a true copy of the Ex Tempore Reasons for Judgment herein of his Honour Mr. Justice Toohey. pated: [9 Angus, Mp5 —T_, AsSociate