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[1985] FCA 458
Federal Court of Australia
1985-07-22
Toohey J
Original judgment source is linked above.
This application is based on s.154 of the Bankruptcy Act 1966 which empowers the Court where it is satisfied inter alia that, in the case of a debtor's petition the petition ought not to
have been presented, to make an order annulling the bankruptcy.
In my view, Mr. Tingley's petition ought not to have been presented because there was in existence at the time an order of the Family Court of Western Australia restraining him from
presenting a petition pursuant to 5.55 of the Bankruptcy Act. If
any question arises as to the authority of the Family Court to make such an order, it is not a question to he resolved by this
Court sitting in bankruptcy. There is an order of the Family
Court evidenced in the sealed order which has been tendered to me. In those circumstances, it seems to me that the application
As Mr. Black points out, I have a discretion in the Matter. But it seems to me that I should exercise that discretion in favour of the applicant for two reasons. The first is that it tends to resolve, to some extent at any rate, the position of the applicant in relation to the order of the Family Court. I say that on the assumption that the petition was filed in ignorance of the order of that Court. Second, Mr. Black on behalf of the bankrupt, has given assurances to Mr. Totterdell, the present trustee, and to the creditors generally of his client's willingness to co-operate in any sequestration proceedings that may be taken by any creditor. In those circumstances I propose toa exercise my discretion and to make an order annulling the bankruptcy. That will be the order of the Court. I certify that this and the preceding page are a true copy of the Ex Tempore
Reasons for Judgment herein of his Honour Mr. Justice Toohey