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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP NO 5 OF 1993 (H)
BETWEEN
IN THE MATTER OF THE INSOLVENCY ACT (CH. 253) AND IN THE MATTER OF THE APPLICATION OF AIYE KINGI - APPLICANT
AND
JOSEPH McTEINE - RESPONDENT
Mount Hagen
Injia J
30 August 1996
6 September 1996
INSOLVENCY - Adjudication of insolvency - Discharge of - Conditional discharge - Insolvency Act (Ch No 253), S. 135.
Held
Conditions of a conditional discharge of insolvency under S. 135 of the Insolvency Act (Ch No 253) does not relate to debts which are or may have been incurred by an insolvent prior to the adjudication of insolvency or during the period of insolvency such as the repayment of costs incurred by the Papua New Guinea Law Society in engaging the services of a receiver.
Counsel
P Dowa for the Applicant
Respondent in Person
P Kopunye for the PNG Law Society (with leave of Court)
6 September 1996
INJIA J: The Respondent, Mr Joseph McTeine, now Applicant, is a former lawyer of this Court. On 15th April 1994, he was adjudged insolvent by the National Court at Mount Hagen pursuant to provisions of the Insolvency Act (Ch 253) “(the Act)&;. More than two years later, he applies for a certificate of discharge under S. 133 133 of the Act. Mr McTeine says in his aviidavit he was settled his debt of K35,000.00 in full to Mr Aiye Kingi. Mr Kingi confirms thatdebt debt has been settled ll.
The PNG Law Society (PNGLS) which appeared as an interested party with leave of e of the Court, whilst not opposing the aption asks the Court to issue a conditional discharge under nder S. 135 of the Act, the proposed condition being that Mr McTeine repay to the PNGLS the sum of about K40,000. This amount is forcosts ints incurred by the PNGLS in engaging the services of David Guin, Chartered Accountants, as receiver under proceeding commenced by PNGLS in OS 125/94 re: PNG Law Society v Joseph McTein60; To this, Mr McTeine saye says he has agreed to pay K29,745.10 at monthly instalment of K1,000.00 but not the other K10,000.00 or so of which he was not aware of until it was raised during the hearing of this motion.
Sections 133 and 135 of the Act provide as follows:
“133. Discharge afteryear with cith consent of creditors, or after two years in any
(1) Subjectuto Stisec(2)n on t on the application of an insolvent who has not obtained a cerate ocharge (whether oher or notr not an application has been made under Section 132, and after the prescribed notice has been given, the Court may grant a certificate of discharge:
(a) with the consent, tistifn d in writing, of a majority in number of the creditors who have proved in the estate and whose debts amount to K20.00 or more each - at the expiration of the period of 12hs afhe da the adjudicationation; or<; or
(b) wtthou ctheentnsf ano cred creditor - at the expiration of two years after that date,and may, for that purpose vary any previous decision.
(2) On an applicaunderectio, the insolvent sent shall hall make make oath that:
(a) ҈ he has has made a full aid fair discovery of his estand(c) &160; #160;  ; henot entered into anto any collusive agreement for the purpose of obtaining that consent.
(3) & On an a an application under Subsection (1), the Court may withhold or suspend the certificate for such perioit thinks just.
135. Condit grant of certificatficate
If onIf on an application for a certificate of discharge, the Court is of opinion that the certificate ought not to be granted unconditionally, it may grant the certificate subject to any condition concerning any salary, pension, emolument, profit, wages, earnings or income that may afterwards become due to, or be earned by, the insolvent, and generally concerning property acquired at a later date.”
This application is treated as an application under S. 133 (b) where the consent of the only creditor in this case Aiye Kingi, or any other creditor who may have proved his debt before the receiver, is not required. This is becauses more than than 2 years since the adjudication of insolvency was made. If any consent is requiMr , Mr Kingi has supplied that consent by making representation through his lawyer.
On the question of a conditional certificate of discharge, Section 135 speaks of conditions which relates to salaries, pension wages, property, and so on which an insolvent might acqui become due to him at a lata later date. These would not includ debe debts which were or may have been incurred by the PNG Law Society in engaging the services of the receiver David Guin, Chartered Accountants, in this case. Section 135 does not relo debts which are or may haay have been incurred by an insolvent prior to the adjudication of insolvency or during the insolvency. Thment of such debts can be resolved through private amicable arrangements such as the one alne already in existence between Mr McTeine and the PNGLS, or resolved through litigation. Further, Ieluctant to impo impose any conditions as to the repayment of the alleged debt to the PNGLS because of the lack of any evidence showing how the debt of such substantial proportion was incurreda job the receiver, it appe appears from statements of all interested parties attendant in Court in these proceedings, may not have satisfactorily completed.
The orders of the Court are:
That a Certificate of Discharge of the insolvent Joseph McTeine be issued forthwith.
Each party shall bear their costs of this motion.
Lawyer for the Applicant: P Dowa Lawyers
Lawyer for the Respondent: Respondent in person
Lawyer for PNG Law Society: P Kopunye Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/1996/25.html