SUPREME COURT

Otago Daily Times, Issue 22102, 4 November 1933, Page 2

SUPREME COURT

Friday, November 3. IN BANKRUPTCY (Before his Honor Mr Justice Kennedy). His Honor gave judgment in two matters that had come before him on the previous day. RE JOSEPH HENRY MACKAY. Motion for order of discharge.—Mr A. J. H. Jeavons appeared for the bankrupt, a contractor. The official assignee (Mr J. M. Adam) appeared iniperson. The official assignee had recommended that discharge be. granted, subject to a judgment of £l5O. i His Honor’s judgment was as follows;: The only question is whether or not the discharge should be subject to a condition that judgment be entered un against, the bankrupt for the sum. of £l5O. There, is no, reason to anticipate that the bank- i rupt, who has been unsuccessful in the’ past, will, after his discharge, be unusually fortunate, and I cannot think that the court is justified in concluding that he is or will be in receipt of an income derived from his earnings more than reasonably sufficient to keep himself and his family in the enjoyment of the ordinary necessities of life according to their station. There is no evidence that he is likely to succeed to property or that he will become possessed of considerable assets which should become available for the creditors. I think, therefore, that, having regard to the over-riding intention of the Legislature in the Bankruptcy Acts which is that the bankrupt, on giving up the whole of his property, should be a free man again, able to earn his livelihood and having the ordinary inducements to industry, I should grant an unconditional discharge. Discharge granted. RE THOMAS JOSEPH BANKS. Motion for order of discharge.—Mr F. C. Dawson appeared for the bankrupt, an electrician, of Oamaru; Mr VV. D. Taylor, for creditors, to oppose. The official assignee (Mr J. M. Adam) appeared in person. • His Honor’s judgment was as follows: — A very small dividend has been paid to creditors. Our Bankruptcy Acts do not, however, contain any provision corresponding to that appearing in the English Act providing that an immediate discharge* is not to be granted if the bankrupts assets are not of a value equal to 10 shillings in the pound on the amount of his unsecureed liabilities unless he satisfied the court that this fact has arisen from circumstances for which he cannot justly be held responsible. Prior to the bankruptcy the bankrupt made an offer of 5s in the £ to the creditors, but this offer was not accepted. Although the assets have realised only sufficient to pay one penny and one-sixteenth of a' penny in the £, the creditors may not claim to oppose a discharge till this sum is paid merely because of the earlier offer. It appears, however, that the bankrupt, subsequent to hi’s bankruptcy, for a period of II months earned about £5 per week. He is unmarried. and had sufficient to pay the official assignee for the creditors one pound per week, as promised. The deputy official assignee in bankruptcy was said not to have been aware of bis right to claim on the personal earnings of the bankrupt the excess beyond what was required for the bankrupt’s support and, as the evidence stands, made some claim only after the bankrupt’s earnings had fallen. There is. however, excuse in view / of the bankrupt’s own promise, which he failed to redeem. The result is that there is not available for the payment of debts of the creditors a gum which should have been available. The failure to redeem a promise which, if fulfilled, would have assured to the creditors no more than they were legally entitled to, should not be disregarded. An immediate discharge is not granted, but a discharge is granted suspended from taking effect tor six months.