Deputy Commissioner of Taxation v Keating

The Deputy Commissioner of Taxation (the Commissioner) sought to have Mr. Keating made bankrupt by presenting a creditor's petition. The dispute centred on the adequacy of the Commissioner's proof of search regarding applications for a bankruptcy notice. The matter came before Antoni Lucev J in the Federal Court of Australia.

The primary legal issue before the Court was the proper form and content of an affidavit of search when seeking to prove that no application had been made to set aside a bankruptcy notice. Specifically, the Court had to determine what constituted sufficient evidence to satisfy the requirements of the Bankruptcy Rules concerning such searches.

His Honour considered the nature of proof required for an affidavit of search in bankruptcy proceedings. The Court held that an affidavit of search must demonstrate that a diligent and thorough search has been conducted of the relevant court records. This involves not merely stating that a search was performed, but detailing the steps taken in that search to ensure that all relevant records have been examined. The affidavit must provide sufficient information to allow the Court to be satisfied that no application to set aside the bankruptcy notice was filed.

The Court found that the Commissioner's affidavit of search was deficient. Consequently, the creditor's petition was dismissed.