s.68Consideration of application for discharge and dealing with same
68
Section 68Part 13 — Discharge of a Bankrupt

Consideration of application for discharge and dealing with same

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The debtor may, at any time after the filing of such report, apply to the Judge hereinafter mentioned to appoint a day for hearing the debtor’s application for an order of discharge. The Judge shall thereupon appoint a day and place for hearing such application. The prescribed notice of the time and place appointed shall be given in the prescribed manner. Any such application for an order of discharge shall be made in open Court, before the Judge before whom the examination of the debtor was held unless such Judge is ill, absent from the Islands or otherwise incapacitated, in which case it shall be made before the locum tenens or successor of such Judge — Provided that in such case it shall be lawful for such locum tenens or successor to use the notes of the Judge before whom the examination was held, and to take such action upon them as the Judge themself might have taken under this Act.
The Trustee or any creditor may oppose the discharge and may show cause why it should be refused, postponed or made subject to conditions.
Whether any such opposition is made or cause shown or not, the Court shall take into consideration the report of the Trustee, and may either grant or refuse an absolute order of discharge, suspend the operation of the order for a specified time or grant an order or discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the debtor, or with respect to the debtor’s after-acquired property — Provided that the Judge shall refuse the discharge in all cases where the debtor has been convicted of an offence under this Act or any other offence connected with the debtor’s bankruptcy, unless for special reasons to be stated in the order the Judge otherwise determines; and further if, on a consideration of the report of the Trustee, or of representations made by the Trustee or any creditor on the hearing of the application, and of the Judge’s notes of the examination of the debtor, and of the evidence, if any, adduced at the hearing of the application, and after hearing the debtor in support of the same, it appears to the Judge that any of the facts set out in subsection (4) has been proved the Judge shall —
refuse the discharge;
suspend the discharge for a period of not less than two years;
suspend the discharge until a dividend of not less than fifty cents in the dollar has been paid to the creditors; or
require the debtor, as a condition of the debtor’s discharge, to consent to judgment being entered against the debtor 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, such balance, or part of any balance, of the debts to be paid out of the future earnings or after-acquired property of the debtor in such manner and subject to such conditions as the Judge may direct; but execution shall not be issued on the judgment without leave of the Court, which leave may be given on proof that the debtor has since the debtor’s discharge acquired property or income available towards payment of the debtor’s debts — Provided further that, if at any time after the expiration of two years from the date of any order made under this section, the debtor satisfies the Court that there is no reasonable probability of the debtor’s being in a position to comply with the terms of such order, the Court may modify the terms of the order, or of any substituted order, in such manner and upon such conditions as it may think fit.
The facts referred to in subsection (3) are —
that the debtor’s assets are not of a value equal to fifty cents in the dollar on the amount of the debtor’s unsecured liabilities, unless the debtor satisfies the Judge that the fact that the assets are not of a value equal to fifty cents in the dollar on the amount of the debtor’s unsecured liabilities has arisen from circumstances for which the debtor cannot justly be held responsible;
that the debtor has omitted to keep such books of account as are usual and proper in the business carried on by the debtor, and as sufficiently disclose the debtor’s business transactions and financial position within the three years immediately preceding the debtor’s bankruptcy;
that the debtor has continued to trade after knowing themself to be insolvent;
that the debtor 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 the debtor) of being able to pay it;
that the debtor has failed to account satisfactorily for any loss of assets, or for any deficiency of assets to meet the debtor’s liabilities;
that the debtor has brought on, or contributed to, the debtor’s bankruptcy by rash and hazardous speculations, unjustifiable extravagance in living, gambling or culpable neglect of the debtor’s business affairs;
that the debtor has put any of the debtor’s creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against the debtor;
that the debtor has, within three months preceding the date of the act of bankruptcy, incurred unjustifiable expense by bringing a frivolous or vexatious action;
that the debtor has, within three months preceding the date of the act of bankruptcy, when unable to pay the debtor’s debts as they become due, given an undue preference to any of the debtor’s creditors;
that the debtor has, within three months preceding the date of the act of bankruptcy, incurred liabilities with a view of making the debtor’s assets equal to fifty cents in the dollar on the amount of the debtor’s unsecured liabilities;
that the debtor has, on any previous occasion, been adjudged bankrupt, or made a composition or arrangement with the debtor’s creditors;
that the debtor has committed any fraud or fraudulent breach of trust;
that the debtor has carried on trade by means of fictitious capital, by means of money raised or obtained at excessive rates of interest or under any plan or scheme involving the payment of excessive interest, fines, premiums, commissions or bonus;
that the debtor is indebted for damages recovered in any action for malicious injury to the person, reputation or property of the plaintiff therein;
that the debtor has failed to deliver up to the Trustee all books, papers, documents or writings in the debtor’s custody or under the debtor’s control, or to disclose the name of the person or persons in whose custody or under whose control the same may be;
that the debtor’s insolvency has arisen from rash or hazardous conduct as a trader; or
that the debtor has wilfully failed to perform any of the duties cast upon the debtor by section 39.
For the purposes of this section, a debtor’s assets shall be deemed of a value equal to fifty cents in the dollar on the amount of the debtor’s unsecured liabilities when the Court is satisfied that the property of a debtor has realised, is likely to realise or with due care in realisation might have realised, an amount equal to fifty cents in the dollar of the debtor’s unsecured liabilities, and a report by the Trustee shall be prima facie evidence of the amount of such liabilities.
For the purposes of this section the report of the Trustee shall be prima facie evidence of the statements therein contained.
Notice of the appointment by the Judge of the day for hearing the application for discharge shall be published in the prescribed manner, and sent fourteen days at least before the day so appointed to each creditor who has proved, and the Judge may hear the Trustee, and may also hear any creditor. At the hearing the Judge may put such questions to the debtor and receive such evidence as the Judge may think fit.
The powers of suspending and of attaching conditions to a debtor’s discharge may be exercised concurrently.
A discharged bankrupt shall, notwithstanding that discharged bankrupt’s discharge, give such assistance as the Trustee may require in the realisation and distribution of such of that discharged bankrupt’s property as is vested in the Trustee, and if that discharged bankrupt fails to do so that discharged bankrupt has committed contempt of Court; and the Court may also, if it thinks fit, revoke that discharged bankrupt’s 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.

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