Darcey, Re P.M. Ex Parte Pre-Term Foundation [1986] FCA 622

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) ) )

BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. P.721 of 1986

AND THE AUSTRALIAN CAPITAL TERRITORY

RE? PATRICK MICHAEL DARCEY

Applicant

EX PARTE:

PRE-TERM FOUNDATION

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Patrick Michael Darcey was made bankrupt by virtue of a sequestration order which was made by Evatt J. on 28 October 1986. From that order, there has been an appeal lodged, and what is now before me 1S a motion which seeks a suspension of the order or a stay of the order pending the hearing of the appeal.

Some question 1s raised in the Australian Bankruptcy Law and

Practice, Fifth Edition, page 100 and also at page 126, concerning the power of the Court having regard particularly to the provisions of s.43(2) and s.58(1), and also having regard to what was said in Re Deriu (1970) 16 F.L.R. 420. At page 422, the present Chief Justice of the High Court, when sitting as a judge

in the Federal Court of Bankruptcy, drew attention to the fact

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- that even the rescission of a sequestration order would not put

an end to a bankruptcy, a proposition for which he cited the

support of Williams J. in Cameron v. Cole (1944) 68 C.L.R. 571 at

page 610.

However, I do not think that in this case it 18 necessary to enter upon the question of the extent of the Court's powers in this regard, because it does not seem to me that a case has been made out that there 1s an occasion calling for the exercise of my discretion, assuming that I have the appropriate powers. It is accepted by the applicant, and indeed appears to be common ground, that there are no other creditors than the petitioning creditor, and that the applicant has no assets and either no income or no significant income. That of course does not preclude, in itself, the possibility that he may come into some inheritance, or in some other way his position may change, but at the present time he 1s certainly not in the situation that, for instance, might conceivably exist in some cases where a person carrying on business might be gravely embarrassed by a sequestration order, against which he might be appealing on bona fide grounds, and might seek some intervention of the Court. I say nothing about such a case. The present case 1s totally different. The applicant is a member of a religious order, has taken vows which include a vow of poverty, and appears not to have or to have had over a substantial period of years either