Discharge of bankrupt.Discharge of bankrupt.

### Discharge of bankrupt. E.B.A., s. 26. N.S.W., ss. 39–44. Vic., ss. 228–246. S.A., ss. 171–174, 177–181, 186–189, 194. W.A., ss. 26–29. Q., ss. 167–170. Tas., s. 47. 119.—(1.) A bankrupt may, at any time after he has been publicly examined, or at such time as is prescribed, and shall, whenever ordered so to do by the Court on the application of the official receiver or the trustee or a creditor who has proved his debt or in pursuance of this Act, apply to the Court for an order of discharge releasing him from his debts. (2.) The Registrar shall— (a) appoint a day for hearing the application which shall be published in the Gazette and in such other manner as is prescribed; and (b) send, at least fourteen days before the day so appointed, to every creditor who has proved his debt, a notice of the day of hearing. (3.) If the bankrupt does not apply for an order of discharge whenever ordered so to do, or does not attend the hearing of the application, he shall, unless the Court otherwise directs, in addition to any other penalty to which he is subject, be deemed to be guilty of a contempt of Court. (4.) Upon any such application, the Court may hear the official receiver, the trustee, any creditor who has proved his debt, and the bankrupt, and may put such questions and receive such evidence as it thinks fit. (5.) On the hearing of the application the Court— (a) shall take into consideration any depositions of the bankrupt and any other evidence produced or received, and a report in writing of the trustee as to the bankrupt’s conduct, trade dealings, property, and affairs, and as to his conduct during the proceedings under the bankruptcy; (b) may either grant or refuse an absolute order of discharge, or may suspend the operation of the order for a specified time, or may grant an order of discharge subject to any conditions with respect to any pay, pension, salary, emoluments, profits, wages, earnings or income which may afterwards become due to the bankrupt, or with respect to his after-acquired property: Provided that the Court shall refuse the discharge in all cases where the bankrupt has committed any offence under this Act, or any other offence connected with his bankruptcy, unless the Court, in its discretion, otherwise determines; (c) may adjourn the hearing of the application from time to time; and (d) may make such order as it thinks fit as to costs, charges, and expenses of the application. (6.) The Court shall, on proof of any of the facts mentioned in the next succeeding sub-section, either— (a) refuse the discharge; or (b) suspend the discharge for a period of not less than two years: Provided that, where the only such fact proved is that the bankrupt’s assets are not of the value of Ten shillings in the pound on the amount of his unsecured liabilities, the Court may suspend the discharge for a period of less than two years; or (c) suspend the discharge until a dividend of not less than Ten shillings in the pound has been paid to the creditors; or (d) require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the trustee for any balance, or part of any balance, of the debts provable under the bankruptcy which is not satisfied at the date of the discharge, the balance or part to be paid out of the future earnings or after-acquired property of the bankrupt in such manner and subject to such conditions as the Court direct; but execution shall not be issued on the judgment without leave of the Court, which leave may be given on proof that the bankrupt has since his discharge acquired property or income available towards payment of his debts: Provided that if at any time the bankrupt satisfies the Court that there is no reasonable probability of his being in a position to comply with the terms of any order made under this, or the last preceding subsection, the Court may modify the terms of the order, or of any substituted order, in such manner and upon such conditions as it thinks fit. (7.) The facts referred to in the last preceding sub-section are— (a) That the bankrupt’s assets are not of a value equal to Ten shillings in the pound on the amount of his unsecured liabilities, unless he satisfies the Court that that fact has arisen from circumstances for which he cannot justly be held responsible; (b) That the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him, and as sufficiently disclose his business transactions and financial position within the five years immediately preceding his bankruptcy; (c) That the bankrupt has, after knowing himself to be insolvent, continued to trade, or obtained credit to the amount of Fifty pounds or upwards; (d) That the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it after taking into consideration his other liabilities at the time; (e) That the bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets; (f) That the bankrupt has brought on, or contributed to, his bankruptcy by rash and hazardous speculations, or by unjustifiable extravagance in living, or by gambling or wagering, or by culpable neglect of his business affairs; (g) That the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him; (h) That the bankrupt has within three months before sequestration, incurred unjustifiable expense by bringing a frivolous or vexatious action; (i) That the bankrupt has within six months before sequestration, when unable to pay his debts as they became due, given an undue preference to any of his creditors; (j) That the bankrupt has, within six months before sequestration, incurred liabilities with a view of making his assets equal to Ten shillings in the pound on the amount of his unsecured liabilities; and (k) That the bankrupt has been guilty of any fraud or fraudulent breach of trust. E.B.A., s. 26 (5). (8.) For the purposes of this section a bankrupt’s assets shall be deemed of a value equal to Ten shillings in the pound on the amount of his unsecured liabilities when the Court is satisfied that the property of the bankrupt has realized, or is likely to realize, or with due care in realization might have realized an amount equal to Ten shillings in the pound on the amount of his unsecured liabilities, and a report by the trustee shall be primâ facie evidence of the amount of those liabilities. E.B.A., s. 26 (6). (9.) For the purposes of this section the report of the official receiver or trustee shall be primâ facie evidence of the statements therein contained. E.B.A., s. 26 (8). (10.) The powers of suspending and of attaching conditions to a bankrupt’s discharge may be exercised concurrently. E.B.A., s. 26 (9). (11.) A discharged bankrupt shall, notwithstanding his discharge, give such assistance as the trustee may require in the realization and distribution of such of his property as is vested in the trustee, and if he fails to do so he shall be guilty of a contempt of Court; and the Court may, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale, disposition, or payment duly made or thing duly done subsequent to the discharge but before its revocation.