The Supreme Court has upheld a High Court order postponing Gerard Killally’s discharge from bankruptcy by one year, after he sold kitchen equipment that had vested in the Official Assignee as part of his bankruptcy estate.
In a judgment delivered on 19 December 2014, Clarke J. said section 85A of the Bankruptcy Act 1988 allowed the court to extend a bankrupt’s period of undischarged bankruptcy for established failures to cooperate, or for hiding or failing to disclose assets. The power could be used as a sanction even where the wrongdoing was complete and remedied and no further inquiries were required. Any extension must be proportionate to the established wrongdoing.
Killally had been adjudicated bankrupt on 27 July 2009 and was due to be automatically discharged on 3 June 2014 under legislation that reduced the discharge period. The Official Assignee applied to postpone discharge, citing Killally’s criminal conviction for theft of property from his bankruptcy estate. The High Court ordered discharge on 3 June 2015.
Killally argued that section 85A was limited to cases where more time was needed to investigate or complete the administration of the estate. He also argued that a further bankruptcy sanction was disproportionate because he had already faced criminal proceedings for the theft.
The Supreme Court rejected the first argument. It distinguished between postponing a final decision while further investigation takes place and imposing a fixed extension under section 85A as a sanction. It held that the Official Assignee had standing to bring the application and that the High Court had jurisdiction to extend the bankruptcy period for established wrongdoing.
The court noted that Killally pleaded guilty to theft after selling equipment between October 2010 and February 2011. Before sentencing, he paid the full value of the goods into the bankruptcy office. He received a three-year prison sentence, fully suspended, and was ordered to complete 240 hours of community service, which he had completed. The Supreme Court said criminal and civil consequences could both follow from the same conduct, provided the overall consequences were proportionate.
A possible failure to disclose two pensions was not treated as a ground for the extension. The Supreme Court said the motion before the High Court relied on the theft conviction, and the pensions issue had not been properly put before that court as a separate basis for relief.
The Supreme Court found no significant error of principle in the High Court’s decision and held that the one-year extension was within the proportionate range. It dismissed the appeal and affirmed the order. A separate order requiring continuing monthly payments was not in issue on appeal.