Falstein v Official Receiver [1962] HCA 65

High Court of Australia Dixon C.J. Taylor and Menzies JJ. Falstein v Official Receiver [1962] HCA 65

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 19 Dixon C.J., Taylor and Menzies JJ.

On 17th March 1959 the Court of Bankruptcy ordered, pursuant to s. 101 of the Bankruptcy Act, that the Official Receiver should, out of the earnings of the bankrupt, receive for distribution amongst his creditors the sum of £100 per calendar month, "the first such payment to be made on or before 30th April 1959 and thereafter the said sum of One hundred pounds (£100) to be paid on or before the last day of each succeeding calendar month" until otherwise ordered. Subsequently, on 20th October 1961, this order was varied by a direction that for a period of six months the bankrupt should pay forty pounds a month, the first of such monthly payments to be made on or before 31st October 1961 "and to be continued until the expiration of this period of six months". The order added that at the end of that period the Official Receiver should be at liberty to apply to vary the order then made.

According to its terms this order of variation ceased to operate six months after 31st October 1961 but it is common ground that the order as drawn up does not express the true intent of the order actually made in Court. What was intended was that the variation should continue indefinitely or until further order, but that the Official Receiver should not be at liberty to move for any further variation until the specified period of six months had expired.

We have not before us the material upon which either the original order or the order by way of variation was made but it appears that until 1st March 1961 the bankrupt was employed in business at a salary. On that date, however, he is said to have resumed practice at the Bar of New South Wales. No doubt, it was this latter circumstance which led to the variation of the original order and which induced the learned judge of first instance to preclude any further application by the Official Receiver for the period mentioned. However, these matters are by the way for in March 1962 the bankrupt applied in person to the Bankruptcy Court for an order rescinding the earlier orders on the ground that they were not authorized by the terms of s. 101. His application was refused and this appeal is brought from the order of refusal.