Marek v Tregenza [1963] HCA 40

High Court of Australia McTiernan, Kitto and Menzies JJ. Marek v Tregenza [1963] HCA 40

ORDER Appeal allowed. Order appealed from discharged. In lieu thereof order that, the debts of the bankrupt having been paid in full, the sequestration order dated 19th February 1960 be annulled.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 15 McTiernan J.

This is a case in which all the debts of a bankrupt were paid in full after the sequestration order was made. Section 124 (1) confers power upon a Court of Bankruptcy to annul a sequestration order in such a case. This is a discretionary power and the Court may refuse for good cause to act under the provision even though all the debts of the bankrupt are paid. The appellant applied under s. 124 (1) to annul the sequestration order made against him. Paine J. refused the application. This appeal is brought against his order on the ground that it is an erroneous exercise of the discretion vested in a Court by s. 124 (1). The materials on which the application fell to be decided are the facts to which the applicant deposed in his affidavit and the materials in the report which the official receiver made on the application. There is nothing in the affidavit or the report adverse to the application. It is not necessary to repeat what is in either document. His Honour's views were expressed during the address of counsel for the applicant. Nothing which was said imputes dishonesty or fraud to the applicant and no issue of commercial morality or public interest was raised against him. See In re Beer; Ex parte Beer [1] . I apprehend the effect of what the learned judge said to be this: the sequestration order gave the applicant respite from the demands of creditors enabling arrangements to be made resulting in the payment of his debts, and it was therefore rather incongruous to seek the annulment of the sequestration order. His Honour considered that it was more appropriate to pursue an application for an order of discharge. In my opinion there was no relevant reason for refusing the application for the annulment of the sequestration order. The appeal should in my opinion be allowed.