Re Reilly; Ex Parte the Debtor [1979] FCA 2; (1979) 36 FLR 268 (5 February 1979)

FEDERAL COURT OF AUSTRALIA

Re REILLY; Ex Parte THE DEBTOR [1979] FCA 2; (1979) 36 FLR 268
Bankruptcy

COURT

FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Bankruptcy - Application for discharge from bankruptcy - Powers of court on application for discharge - Considerations relevant on application - Time for application - Bankruptcy Act 1966 (Cth.), ss. 37, 150. It was argued for the bankrupt, who sought a discharge from his bankruptcy, that under s. 150 of the Bankruptcy Act 1966, if none of the matters under sub-s. (6) of that section were established in relation to the bankrupt, then the court was empowered under sub-s. (7) of that section to grant a discharge, but only unconditionally. It was further argued that s. 150 of the Act provided an exclusive code governing all matters relevant to applications for discharge.

Held: (1) The word "may" in sub-s. (7) of s. 150 of the Act is used in a permissive sense, and does not require the court to order an unconditional discharge where none of the matters under sub-s. (6) of s. 150 of the Act is established.

Ex parte Gleeson, (1907) VLR 368; Julius v. Bishop of Oxford (1880), 5 App. Cas. 214; Ward v. Williams [1955] HCA 4; (1955), 92 CLR 496, referred to.

Re Mallan (1975), 25 FLR 20, distinguished.

(2) Section 150 of the Act is not an exclusive code governing the determination of applications for discharge, and the court must have regard not only to the interests of the bankrupt and his creditors, but also the interests of the public and of commercial morality as well as the conduct of the bankrupt relevant to his bankruptcy, even where none of the matters in subs. (6) is established. Such a view is supported by s. 37 of the Act which empowers the court to rescind, vary or discharge an order made by it under the Act, or to suspend the operation of such an order.

Re Tobias & Co.; Ex parte Tobias, (1891) 1 QB 463; Re Durnford (1895), 73 LT 583; Re A Debtor, (1939) 1 Ch 489; Re Summers; Ex parte Official Receiver, (1907) 2 KB 166; Re McDonald (1893), 14 LR (NSW) (B. & P) 11; Re Prince; Ex parte The Bankrupt (1961), 19 ABC '39; Re John Maxwell Gray (1960), 19 ABC 29; Re Mallan (1975), 25 FLR 20, referred to.

(3) Once the public examination of the bankrupt has been concluded or the court has directed that a public examination should not be held, or the registrar has dispensed with a public examination, the bankrupt is entitled to apply for an order of discharge at any time, and the time of application has no bearing on the competency of the application, although it is a matter which the court may consider when exercising its discretion.

Re Gaskell, (1904) 2 KB 478, referred to.

(4) Conditions may be imposed as to the payment by a bankrupt of contributions from his income, although it is doubtful that a condition that the bankrupt pay a percentage of his gross income is one that could be imposed on his discharge.

Re Watson Unreported. (No. 662 of 1963), referred to.

(5) Unless a man will be able to support his dependants and himself, or is likely to inherit or succeed to property, the court should not impose unduly burdensome conditions so that he cannot improve his position in life and will be deprived of all incentive for exertion on his part.

Re Hawkins; Ex parte Official Receiver, (1892) 1 QB 890, referred to.

(6) In the circumstances, an unconditional order of discharge should be made.

HEARING

Sydney, 1978, March 8; October 4; November 14; 1979, February 5.

05:02:1979

APPLICATION.

The material facts appear from the judgment.

E. H. St. John Q.C. and E. C. Lewis, for the applicant.

T. M. Jucovic, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Weiss & Co.

Solicitors for the respondent: Baldick, McPherson & Walsh.
R. L. CRISP

DECISION

February 5.

The following judgment was delivered.
LOCKHART J. This is an application for discharge from bankruptcy. (at p269)

2. General Credits Ltd. is the only creditor revealed by the bankrupt in his statement of affairs. No one else has proved in the bankruptcy. The proof was admitted on 14th November, 1978, in the sum of $64,929.38 of which $38,410 represents an unsecured claim and $26,519.38 represents an unsecured claim deferred pursuant to s. 112 of the Bankruptcy Act 1966 ("the Act"). The sum of $64,929.38 is arrived at as follows:

$
Total amount owing 180,359.42
Less payments and proceeds of sale of properties 90,430.04
----------
89,929.38

Valuation of remaining property unsold but valued for the purposes of

proof by General Credits Ltd. 25,000.00

----------
64,929.38
---------- (at

p269)

3. General Credits Ltd. opposes the application. (at p270)

4. The official receiver neither supports nor opposes the application. (at p270)

5. The bankrupt became bankrupt on 18th October, 1977, on his own petition. (at p270)

6. In his statement of affairs the bankrupt revealed the following assets:

$<$
Cash at bank 350.00
Cash in hand 30.00
Land at Charlestown and Warners Bay 113,000.00
Less amount owing under mortgage to
General Credits Ltd. 164,406.75 ----------
51,406.75
---------- (at p270)

7. A total of $2,169.93 has been brought to the credit of the estate account as follows:

Book dept 200.00
Contributions by the bankrupt 1,820.00
Proceeds of bank account 149.93
----------
$2,169.93
---------- (at

p270)

8. After payment of official fees and percentages, a sum of about $1,450 will be available to General Credits Ltd. provided no other creditors prove in the estate. (at p270)

9. The bankrupt is a single man aged forty-seven years without dependants. At present he is employed as a marine engineer by The Australian National Line. (at p270)

10. The bankrupt studied marine engineering at Sydney Technical College. After completing his course he worked from 1952 to 1959 with a firm, Automatic Fire Sprinklers. During those years, he studied at night school conducted by the South Australian School of Mines. He joined The Australian National Line in 1962 as an engineer. During 1967 and 1968 he served with the United States Navy on an aircraft carrier off Vietnam. In 1969 he came ashore and studied for his chief engineer's certificate which he obtained in 1970. (at p270)

11. In 1969 the bankrupt and a Mr. R. W. McGorin purchased for $100 a copper mining lease near Broken Hill. A partnership was formed to mine the lease. A total of $2,000 was contributed as capital to the venture and used as working capital and for the purchase of tools and equipment. (at p270)

12. In about 1970, the lease was sold to Jensen Mining Investments Ltd. for $122,000. After payment of selling expenses and legal fees, the bankrupt and Mr. McGorin each received about $57,500. Of that amount, the bankrupt paid $5,500 to the Deputy Commissioner of Taxation in respect of his income tax liabilities. The balance of $52,000 was used to finance a real estate development venture in which the bankrupt became involved and for his living expenses. (at p271)

13. After the sale of the lease the bankrupt returned to The Australian National Line and whilst there he investigated various avenues with a view to making a fresh start in life. The bankrupt did not enjoy life as a ship's engineer because he regarded the work as undesirable, hot, noisy and dirty. He decided to enter into the business of developing real estate. (at p271)

14. In February 1973 he purchased two five-acre allotments at Warners Bay and one allotment of five and one half acres at Charlestown. The total purchase price of the land was $120,000. A deposit of $18,000 was paid. A mortgage was given to General Credits Ltd. to finance the transaction. Mortgage instalments were $1,000 per month. Shortly after the transaction was completed the bankrupt paid General Credits Ltd. the sum of $12,000 to meet mortgage instalments for twelve months. That money together with the deposit of $18,000 represented portion of the moneys which had come from the proceeds of the sale of the mining lease. (at p271)

15. It was the bankrupt's intention when he purchased the land to have it developed and subdivided into residential lots for subsequent sale. Before taking this action it was necessary to have the zoning of all the land changed from non-urban to residential. To this end, the bankrupt spent approximately $9,000 by way of survey costs and legal fees with that money coming from the sale of the mining lease. The zoning of the land at Charlestown was changed to residential. No change was made to the zoning of the land at Warners Bay. (at p271)

16. Before he went into the real estate venture, the bankrupt examined it carefully and arranged for a firm called Markus Developments to prepare a feasibility study and cash flow relating to it. That material was placed before General Credits Ltd. when the bankrupt applied to it for finance. (at p271)

17. He borrowed two amounts of $24,000 and $68,000 from General Credits Ltd. and granted mortgages to secure repayment of the loans. There were old houses on the properties which were tenanted at the time so that the bankrupt received a small income from rentals. At the time the bankrupt sought the loan from General Credits Ltd., he completed a questionnaire showing his assets and liabilities and a surplus of assets over liabilities of $44,000. The bankrupt said in evidence that he was in a sound financial position at the time he sought the loan from General Credits Ltd. (at p271)

18. Towards the end of 1973, the real estate market collapsed and the bankrupt found himself in financial difficulties. (at p271)

19. General Credits Ltd. subsequently entered into possession of its security. The company had declined to make any further advances to the bankrupt due to a lack of capital on his part and to his inability to have the zoning of the land at Warners Bay changed to residential. (at p272)

20. In November 1974, the bankrupt found himself in a position where all his assets had been dissipated and he went back to work for The Australian National Line. His salary was about $158 per week after tax. He agreed with General Credits Ltd. to pay it $150 of this sum. He in fact made those payments to General Credits Ltd. from 1st November, 1974, until he became bankrupt on 18th October, 1977. Since then, the bankrupt has been paying to the official receiver $35 per week out of a net salary of $200 per week, thus leaving himself $165 for his own expenses. (at p272)

21. The bankrupt is at sea for about twenty-eight weeks a year and his keep is provided on board ship. He is ashore for about twenty-four weeks and keeps himself out of the salary he receives from his employer. He has no fixed place of abode but lives in various places including motels when ashore. He receives the same income as he does when he is on board ship. The payments made by the bankrupt since his bankruptcy have been voluntary. No application has been made under s. 131 (2). He made the payments to General Credits Ltd. from late 1974 to 18th October, 1977, and thereafter to the official receiver regularly, and has never applied to the official receiver to waive payments. He has not found it easy to make these payments because of his general living expenses. (at p272)

22. The bankrupt wishes to marry a lady who is a nursing sister at a hospital in Perth and is thirty-four years of age. He wishes to acquire a home and raise a family. He is not engaged. As yet, he has not asked the lady to marry him. (at p272)

23. The bankrupt recently spoke to an officer of the Rural Bank of New South Wales at Warners Bay who told him that he would not be eligible for a housing loan as an undischarged bankrupt, but that he would be eligible if he is discharged from bankruptcy. The bankrupt was told that he would be lent $30,000 by the bank if he had sufficient deposit to outlay. (at p272)

24. Apart from his salary, the bankrupt has no source of funds. His mother died in 1976 leaving her estate between sisters and a brother of the bankrupt. It is a small estate. He has no prospects of inheritance. (at p272)

25. The bankrupt said that he finds it difficult to pay $35 a week from his salary and if he marries and establishes a home it will be more difficult. For every $10 the bankrupt pays towards his estate, he is able to borrow $1,000 less on a home. The bankrupt does not know whether the lady whom he wishes to marry has any income or assets that may be available to assist in the purchase of a home; but he does not think she has. (at p272)

26. The bankrupt gave evidence as to his reasons for applying for a discharge. He said that being a bankrupt affects his prospects of advancement with The Australian National Line. He is qualified as a chief engineer but is in fact sailing as a third engineer. He said that The Australian National Line had 800 employees of whom about 200 are applying for jobs as engineers and only about forty jobs are available. His employer does not know that he is an undischarged bankrupt; but if the employer hears this he thinks his prospects of advancement will be diminished. He said that he thought his prospects of advancement were quite good if he obtained his discharge. (at p273)

27. He was dismissed from his employment with The Australian National Line in 1969 but not for misconduct. (at p273)

28. He said that he did not know whether he actually contributed to his own bankruptcy; everything he did was in good faith and with honest intentions. He said that it was not his fault or the fault of General Credits Ltd. that caused him to become bankrupt; rather it was the collapse of the real estate market in late 1973. (at p273)

29. He gave another reason for seeking discharge from bankruptcy, namely, that, although he is relatively fit, he has an irregularity of the heart which became apparent about the time he became bankrupt. He has no eligibility for superannuation and no retirement benefits at this stage. He is a temporary employee with The Australian National Line. (at p273)

30. A further reason the bankrupt gave for seeking a discharge was that he wished to obtain his own home and could not obtain finance to achieve this end whilst he remained an undischarged bankrupt. (at p273)

31. Senior counsel for the bankrupt contended that the court was bound to grant an unconditional discharge. I summarize his argument as follows: Subsections (5) and (7) of s. 150 are the only source of power to grant a discharge. Subsection (5) requires the court, if any of the matters specified in sub-s. (6) is established, to refuse to make an order of discharge or to make an order of discharge but suspend its operation, as the court thinks proper, either unconditionally or subject to conditions. Subsection (6) specifies what senior counsel for the bankrupt described as nine "quasi offences" which were intended by the legislature to cover so far as possible the whole range of matters which should operate as a bar to discharge in normal circumstances. Subsection (7) empowers the court to grant a discharge if none of the matters specified in sub-s. (6) is established; but then only unconditionally. The Act is silent as to the grant of discharge on conditions if none of the matters specified in sub-s. (6) is established. Section 150 provides its own code of discharge, and there is no room for the implication of a power to grant a discharge subject to conditions. (at p273)

32. The argument is founded upon two separate assumptions. First, that sub-s. (7) is not a permissive or facultative provision. Second, that s. 150 provides an exclusive code covering all matters relevant to applications for discharge. (at p274)

33. Senior counsel for the bankrupt contended that the word "may" is used in sub-s. (7) not in a compulsory sense, but in an almost compulsory sense. All the court is empowered to do is to grant the application unconditionally on the basis that, as senior counsel contended, severe treatment should be meted out to those who have offended against the cannons of conduct specified in subs. (6) whilst benign treatment should be extended to those who have not offended. There may be some circumstances where the court is not bound to order an unconditional discharge under subs. (7); but they must be special. That is the argument. (at p274)

34. Prima facie permissive or facultative expressions in statutes are interpreted according to their natural and ordinary meaning. In Ex parte Gleeson Cussen J. said: "the authorities clearly indicate that it lies upon those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that it was intended to have such meaning". (1907) VLR 368, at p 373 (at p274)

35. In Julius v. Bishop of Oxford Lord Selborne said: "the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power". (1880) 5 App Cas 214, at p 235 (at p274)

36. These passages were cited with approval by the High Court in Ward v. Williams. [1955] HCA 4; (1955) 92 CLR 496, at p 505 (at p274)

37. In my opinion the word "may" in sub-s. (7) is used in a facultative sense. I do not consider that the context in which the word appears, or the provisions of the Act relating to applications for discharge, or the general scope and objects of the Act, indicate that the word was intended to have a compulsory or, as senior counsel for the bankrupt contends, an almost compulsory meaning. (at p274)

38. "May" is used in sub-s. (7) in a permissive sense in contradistinction to the word "shall" in sub-s. (5). (at p274)

39. Whether the word "may" is used in sub-s. (6) in a permissive or compulsory sense was not the subject of argument before me. I do not consider that the answer to that question would assist in determining the sense in which the word "may" is used in subs. (7). (at p275)

40. If the word "may" is used in the imperative sense in sub-s. (7), it would follow that, if none of the matters specified in sub-s. (6) is established, the bankrupt would be entitled as of right to a discharge. The bankrupt's argument makes no room for the implication of any powers relating to applications for discharge. (at p275)

41. I was referred to various authorities which have considered the nature and extent of the court's powers on applications for discharge, including power to grant a conditional discharge; but the researches of counsel did not reveal any case where the court considered its power to grant a discharge conditionally, or to suspend the operation of an order of discharge, where none of the matters specified in sub-s. (6) was established. (at p275)

42. In Re Mallan (1975) 25 FLR 20 Judge White considered the power of the court to impose conditions upon the making of an order of discharge. His Honour held that the court's discretion was wider than under the 1924 Act and that the court was empowered to impose conditions which operate after the date of the operation of the order of discharge. Leave to appeal to the High Court was refused (see Mallan v. Official Receiver). (1975) 50 ALJR 1 That case related only to the construction of sub-s. (5) and to the question whether conditions could remain operative after a period of suspension imposed pursuant to sub-s. (5). It was not necessary for his Honour to consider sub-s. (7) and his judgment throws no light upon its interpretation. (at p275)

43. One would not readily construe s. 150 so as to limit the court's powers on hearing an application of discharge, where none of the matters specified in sub-s. (6) is established, merely to making an order of discharge unconditionally. Notwithstanding that the bankrupt may not have engaged in any of the conduct specified in sub-s. (6), there may be good reasons why, on the facts of a particular case, a discharge ought to be granted subject to conditions or where the order of discharge ought to be suspended either conditionally or unconditionally. (at p275)

44. In my opinion the very structure and language of s. 150, imperfect though it is, leads to the conclusion that a power to make a conditional order of discharge or to suspend the operation of an order of discharge or to refuse the application for discharge is to be implied from the fact that the court is not bound to make an unconditional order. This assumes of course the correctness of my finding that the word "may" is used in a permissive or facultative sense. (at p275)

45. I turn to the argument that s. 150 is an exclusive code as to applications for discharge. In my opinion, the language of subss. (5), (6), and (7) and the juxtaposition between sub-ss. (5) and (7) of sub-s. (6) establishes that the court has power: (i) to make an unconditional order of discharge (sub-s. (7)); (ii) to refuse to make an order (sub-s. (5) (a)); or (iii) to make an order but suspend its operation either conditionally or unconditionally (subs. (5) (b)). (at p276)

46. If any of the matters specified in sub-s. (6) is established, the power of the court is confined to a choice between (ii) and (iii). If none of the matters specified in sub-s. (6) is established, the court has a choice between (i), (ii) and (iii). (at p276)

47. My view is supported by s. 37 of the Act which empowers the court to rescind, vary or discharge an order made by it under the Act or to suspend the operation of such an order. (at p276)

48. There are many instances to be found in the reported decisions where the court has been held to be empowered to act under s. 37 if the order which is sought to be rescinded, varied or discharged or the operation of which is to be suspended, is an order of discharge from bankruptcy. See Re Tobias & Co.; Ex parte Tobias; (1891) 1 QB 463 Re Durnford; (1895) 73 LT 583 Re A Debtor; (1939) 1 Ch 489 Re Summers; Ex parte Official Receiver. (1907) 2 KB 166 (at p276)

49. Is it to be suggested that if none of the matters specified in subs. (6) is established, the court can do no more than make an unconditional order of discharge; yet as soon as the order is taken out (see Re McDonald) (1893) 14 LR (NSW) (B & P) 11 the court may vary that order or suspend its operation? (at p276)

50. In my opinion the power to vary an order carries with it the power to vary by imposing conditions. Also, it is inherent in the power conferred by s. 37 to suspend the operation of an order that the court may do so by reference to the passage of time or to the happening of a particular event or both. Implicit in that power is the power to make a conditional order. (at p276)

51. Counsel for General Credits Ltd. submitted that s. 37 was itself a source of power, on hearing an application for an order of discharge, to suspend the operation of that order. I do not accept that argument as, in my opinion, s. 37 empowers the court to rescind vary or discharge an order or to suspend the operation of an order which has been made by the court. It says nothing as to the power of the court to suspend the operation of an order to be made. (at p276)

52. Section 30 (1) (b) provides that the court "may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter". (at p276)

53. It was not argued that this section empowers the court on the hearing of an application for an order of discharge to make a conditional order or to suspend the operation of an order of discharge. Hence I shall not decide that question. (at p277)

54. Counsel for General Credits Ltd. contended that s. 149 supports the conclusion that the court's powers under sub-s. (7) of s. 150 are not confined to granting an unconditional order of discharge. (at p277)

55. He contended that s. 149 grants an automatic discharge by effluxion of time (five years) subject to the right of certain persons to object, so that what is otherwise automatic is required to be dealt with under s. 150. The grounds of objection are not set forth in s. 149 and are not limited to the matters specified in subs. (6). Nor is it a condition precedent to the automatic discharge after five years that the public examination of the bankrupt has been concluded or dispensed with. It was contended that if the bankrupt is to be entitled to an unconditional discharge, provided that none of the matters specified in sub-s. (6) is established, one would expect that there would be no right to object to an otherwise automatic unconditional discharge under s. 149 except on the grounds specified in sub-s. (6) or on the basis that the public examination has been concluded or dispensed with. This is not the case. Grounds of objection are not circumscribed by the Act. In my opinion this contention is correct. (at p277)

56. It was contended by senior counsel for the bankrupt that the omission from the Act of an express power to make an order of discharge "subject to any conditions . . . with respect to his after-acquired property" which was conferred by s. 119 of the 1924 Act, lends support to the argument that a new departure was deliberately intended by the language of sub-s. (7) of s. 150 of the Act. In my opinion, this contention is not correct. It is true that the power of the court to grant or refuse an unconditional order of discharge, or to suspend the operation of the order for a specific time, or to grant an order of discharge subject to certain conditions, was conferred upon the court in express terms by s. 119 (5) (b) of the 1924 Act in cases where the bankrupt had not committed any offences under the Act or any other offences connected with his bankruptcy unless the court in its discretion otherwise determined. Section 150 is different from its predecessor in structure and language. For instance, much of par. (b) of sub-s. (5) of s. 119 of the 1924 Act to which I have just referred, is not repeated; but one of the matters specified in sub-s. (6) of s. 150 under par. (i) is that the bankrupt has been convicted of an offence against the Act or the repealed Act or any other offence related to his bankruptcy. (at p277)

57. In my opinion sub-s. (7) of s. 150 does not limit the court's power when considering an application for an order of discharge where none of the facts specified in sub-s. (6) is established. (at p277)

58. Subsection (7) has nothing to say about the matters to which the court may have regard in considering whether a bankrupt should receive a discharge. (at p277)

59. In considering whether a bankrupt should receive a discharge it has been laid down repeatedly that the court must have regard not only to the interests of the bankrupt and his creditors but also to the interests of the public and of commercial morality. In the exercise of its discretion the court must also consider the conduct of the bankrupt relevant to his bankruptcy. See Re Prince; Ex parte The Bankrupt; (1961) 19 ABC 39 Re John Maxwell Gray; (1960) 19 ABC 29 Re Mallan. (1975) 25 FLR 20 In my opinion, the principles expressed in the authorities apply to an application for discharge where none of the matters specified in sub-s. (6) is established. (at p278)

60. I turn to consider the application for discharge in the light of these principles. (at p278)

61. It was contended by senior counsel for the bankrupt that, although the application for discharge is made a little more than one year from the date of bankruptcy, such circumstance should not bar the bankrupt from receiving his discharge. (at p278)

62. In my opinion once the public examination of the bankrupt has been concluded or the court has directed that a public examination should not be held or the registrar has dispensed with a public examination (s. 150 (i) (a) and (b)), the bankrupt is entitled to apply for an order of discharge at any time. Subsection (1) of s. 150 says so expressly. Whether the application is made a day, a year or more than a year later, has no bearing on the competency of the application; but it is a matter which the court may consider in exercising its discretion. (at p278)

63. In Re Gaskell, Vaughan Williams L.J. said: "After all, the overriding intention of the Legislature in all Bankruptcy Acts is that the debtor on giving up the whole of his property shall be a free man again, able to earn his livelihood, and having the ordinary inducements to industry. Sometimes it is not right that the bankrupt should be free immediately; he must pass through a period of probation; and theoretically there may be cases in which he ought not be free at all, but prima facie he has to give up everything he has, and on doing that he is to be made a free man". (1904) 2 KB 478, at p 482 (at p278)

64. The bankrupt has only one creditor, General Credits Ltd. When the loans were made by General Credits Ltd. to the bankrupt it appears that his assets exceeded his liabilities. He made full disclosure of his financial position to the company. He investigated the real estate development venture carefully, including arranging for the preparation of a feasibility study and cash flow. This was placed before the company before the loans were made. (at p278)

65. There was no absence of probity in the bankrupt's dealings with General Credits Ltd. or in the circumstances in which the debt was incurred. It may not be accurate to say that he was entirely a victim of the real estate depression in Australia in 1973- 1974; but it made a very material contribution to his financial failure. (at p279)

66. Since late 1974 he has honoured his commitments to General Credits Ltd. as best he could. For three years, from 1st November, 1974, to 18th October, 1977, when he was made bankrupt, he paid the lion's share of his salary to his creditor. This represented $150 out of a weekly net salary of $158. It is agreed by all parties that the total payments made by the bankrupt to General Credits Ltd. from 1st November, 1974, to 18th October, 1977, were $23,100. Since his bankruptcy he has contributed to the official receiver $1,820 at the rate of $35 per week. (at p279)

67. If he marries he will do so in his middle age; he will need a home for his wife and himself. (at p279)

68. I accept the submission of counsel for General Credits Ltd. that whether the bankrupt will marry is conjectural; but the personal sense of shame that he said in evidence he feels about his being a bankrupt may explain at least in part the uncertainty that surrounds any prospective marriage. (at p279)

69. The official receiver reports that his conduct has been satisfactory during his bankruptcy. No matters specified in sub-s. (6) of s. 150 have been reported by the official receiver; nor are any alleged by General Credits Ltd. None has been established. (at p279)

70. Counsel for General Credits Ltd. contended that the application ought to be adjourned for a time to see if the bankrupt does marry and if he continues to make payments to the official receiver as he has done in the past, and then to hear further the application for discharge. I have decided that this would not be the proper course to take. So far as the marriage plans of the bankrupt are concerned, it would be tantamount to offering him the prospect of discharge from bankruptcy if he marries. That would not be a proper exercise of discretion. (at p279)

71. I have considered imposing as a condition of his discharge that the bankrupt makes periodical payments out of his salary to General Credits Ltd. for a fixed time. (at p279)

72. It is well established that conditions may be imposed as to the payment by a bankrupt of contributions from his income; although I respectfully agree with what was said by Gibbs J. in Re Watson Unreported. (No. 662 of 1963.) where his Honour expressed doubt whether the condition that the bankrupt pay a percentage of his gross income is one that could be imposed on his discharge. (at p279)

73. It has been said by the authorities more than once that unless the court is satisfied that a man in receipt of income derived from his earnings or otherwise will be able to provide support for himself and his dependants to live on, or is satisfied that he is likely to inherit or otherwise succeed to property, it ought not to impose unduly burdensome conditions so that he cannot improve his position in life and remove all incentive for exertion on his part. In Re Hawkins; Ex parte Official Receiver Vaughan Williams J. (as his Lordship then was) said: "The reason why an undischarged bankrupt is entitled to retain his personal earnings is, that he must be allowed to support himself and those whom it is his legal duty to support, and that he cannot be converted into a mere slave or personal chattel of his creditors". (1892) 1 QB 890, at p 893 (at p280)

74. The bankrupt said in evidence that he has not found it easy to pay $35 per week out of the $200 net that he receives and that he will find it less easy in the future if he marries. (at p280)

75. I accept the bankrupt as a truthful witness. (at p280)

76. Senior counsel for the bankrupt contended that any further contributions which the bankrupt could make would be trivial in comparison with the amount of the debt of General Credits Ltd. Counsel for General Credits Ltd. submitted that this would not be so if the bankrupt were to pay $35 per week over, for instance, the five year period of his bankruptcy, a total of $9,100. (at p280)

77. In my opinion it would be an undue imposition upon the bankrupt to require him to pay moneys of this order. He is entitled to a fresh start in life and to make his decisions as to marriage and employment unfettered by his bankruptcy, notwithstanding that his application is made so soon after his bankruptcy. It must be remembered that for some three years before his bankruptcy, when he was in a parlous financial position, he voluntarily paid almost all he earned, and that was all he had, to his only creditor. (at p280)

78. In all the circumstances I propose to make an unconditional order of discharge. (at p280)

ORDER

I order that the public examination of the bankrupt shall be deemed to have been concluded on 13th November, 1978. I make an order of discharge.

Order accordingly.