Kaden, R.J. and L.M. v The Official Trustee in Bankruptcy

[1987] FCA 559

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE SOUTHERN	1 No. E.127 of 1 9 8 7
DISTRICT OF THE STATE OF QUEENSLAND	)
- RE :

R.J. KADEN & L.M.

KADEN

Applicants

- AND:

THE OFFICIAL 'TRUSTEE

IN BANKRUPTCY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an application brought on behalf of a bankrupt and hls wife, who have been summonsed to give evidence under s . 8 1

of the Bankruptcy Act 1966, for an order that the summonses be set aside, and alternatively seeking ad~ournment of the summonses.

There is also an application that access be granted to

the original applicatlon, and supporting materlal, for the issue

of the summons under s . 8 1 in respect of the bankrupt's wife, Mrs.

Lynette Mary Kaden. As to that matter, there 1s no opposition to a grant of access, and I d o not think it is necessary to say anything more about it.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE SOUTHERN	) NO. E.127 of 1987
DISTRICT OF THE STATE OF QUEENSLAND	1
- RE :

R.J. KADEN L L.M.

KADEN

Applicants

AND:

THE OFFICIAL TRUSTEE

IN BANKRUPTCY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an applicatlon brought on behalf of a bankrupt

and hls wife, who have been summonsed to give evldence under s.81

of the Bankruptcy Act 1966, for an order that the summonses be set aside, and alternatively seeking ad~ournment of the summonses.

There is also an application that access be granted to

the original application, and supporting material, for the issue

of the summons under s.81 in respect of the bankrupt's wlfe, Mrs.

Lynette Mary Kaden. As to that matter, there is no opposition to a grant of access, and I do not think ~t 1s necessary to say anythlng more about it.

2 .

The application has been brought at extremely short

notice, and a question was raised on behalf of the Offlclal

Trustee as to whether it ought not to be ad~ourned to enable hlm

to put on evidence. However, I have reached a clear concluslon

on the materlal presented very fully and falrly to the Court on behalf of the applicants, and I do not thlnk that l t 1s appropriate that I do other than deal wlth the matter on the

evidence that they have presented.

The matter has to be considered agalnst the background of the fact that proceedlngs have been begun by Mrs. Kaden in the

Supreme Court agalnst the Officlal Trustee In Bankruptcy. In those proceedings, 1t is alleged that, several years prlor to the bankruptcy, there was an agreement to transfer the bankrupt's

half interest In the matrlmonlal home at a prlce In accordance wlth a valuatlon whlch had been obtalned, and, one week later, a deed was executed by the bankrupt forglvlng the contract price. The application 1s based on the proposltlon that the examinatlons should not go forward whllst those proceedings are pendlng - and it has been suggested that they mlght come on for hearlng wlthln s1x months, though they have only recently been set down.

Reference was made to a number of cases, both In the

bankruptcy ~urlsdlctlon and In relatlon to the llquidatlon of companies, and lt was accepted that slmllar prlnclples apply In both types of matter. In partlcular, I was referred to Fe Hugh

J. Roberts Pty. Ltd. (In Llq.) and the Companles Act ( 1 9 7 0 ) 91

W.N. ( N . S . W . ) 537, a declslon of Mr. Justlce Street, as he then

3 .

.	.	was, and Re John Arnold’s Surf Shop Pty. Ltd. (In Llq.) ( 1 9 7 9 ) 4 A.C.L.R. 663, a decision of Mr. Justice Cox. Mr. Justice Cox took the same view of the law as had been taken by Mr. Justice
Street. It is not suggested that those cases were wrongly
matter, to be exercised in all of the circumstances, and it is said that the decisions are distlnguishable. What is particularly relied on, in order to distinguish them, is evidence that information has already been provlded on behalf of the persons proposed to be examined, and affidavlts made by them have been filed in the Supreme Court proceedings. It is said that the
decided, but it is pointed out that I have a discretion in the with the benefit of that information, he has already made up his mind to resist the claim made in the Supreme Court proceedings.

Perusal of the affidavits relied on leaves me feeling

that there are questions which could reasonably be asked before it could, in fact, be concluded that the Officlal Trustee has been fully informed. I think I should apply the law as stated in the cases referred to, and I am not persuaded that the application should succeed. I do not see any basis for concluding in this case that the examinatlon would be other than a proper exercise of the powers of the Offlcial Trustee in the discharge of his duties. I am posltlvely of the vlew that the examlnations should proceed. Accordlngly, dlsmiss Ithe

appllcatlon, save as regards the matter of the grant O E access,

and that is agreed to. I think, in all the circumstances, it 1s true that that matter has not had any Impact on the costs, and I

.

4 .

think lt is approprlate that I dlsmiss the appllcatlon wlth

costs, includlng the reserved costs.

I certlfy that this and the

preceding three (3) pages are

a true copy of the Reasons f o r

Judgment herein of his Honour

Mr. Justlce Burchett.

-

Dated: 23 September, 1987.