MICHELETTO & CARRAFA AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF EL-DEBEL

[2019] FCCA 594

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHELETTO & CARRAFA AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF EL-DEBEL [2019] FCCA 594

Catchwords:
BANKRUPTCY – PRACTICE AND PROCEDURE – Application by three persons to set aside summonses for production and summonses for examination purportedly issued against them under s.81(1) of the Bankruptcy Act 1966 (Cth) – whether one of the summonses for production called for documents for which an order to issue a summons for their production had not been obtained - whether summonses invalid because they did not comply or substantially comply with the prescribed form of summons – whether summonses called for documents that went beyond the permitted scope of documents that could be called for under a summons for production issued under s.81(1) of the Act – whether there had been substantial compliance with the summonses for production and if so whether that is a reason for not discharging the summonses – order discharging summonses made.

Legislation:

Bankruptcy Act 1966 (Cth), s.81

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.1.07(4), 6.08, 6.11(1), 6.14(1)

Cases cited:

Karounos v Official Trustee (1988) 19 FCR 330

First Applicant: RONIA AYAD

Second Applicant: TPS GROUP SERVICES PTY LTD
(ACN 600 953 035)

Third Applicant: FATME EL-DEBEL

First Respondent: FABIAN KANE MICHELETTO IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BACHAR EL-DEBEL

Second Respondent: MICHAEL CARRAFA IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BACHAR EL-DEBEL

File Number: SYG 3047 of 2018

Judgment of: Judge Manousaridis

Hearing date: 8 March 2019

Date of Last Submission: 8 March 2019

Delivered at: Sydney

Delivered on: 12 March 2019

REPRESENTATION

Counsel for the Applicants: Mr D Allen

Solicitors for the Applicants: Avondale Lawyers

Counsel for the Respondents: Mr D A Weinberger

Solicitors for the Respondents: ERA Lawyers

ORDERS

1. Each of the summonses for production and each of the summonses for examination issued to each of the applicants to the application in a case filed on 6 March 2019 is discharged.

2. All documents produced by each of the applicants in response to the summonses for production be returned to each of the applicants who produced the documents.

3. The costs of the application in a case are reserved.

FEDERAL CIRCUIT COURT

OF AUSTRALIA
AT SYDNEY

SYG 3047 of 2018

RONIA AYAD

First Applicant

TPS GROUP SERVICES PTY LTD (ACN 600 953 035)

Second Applicant

FATME EL-DEBEL

Third Applicant

And

FABIAN KANE MICHELETTO IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BACHAR EL-DEBEL

First Respondent

MICHAEL CARRAFA IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BACHAR EL-DEBEL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me is a further amended application in a case filed by Ms Ronia Ayad, Ms Fatme El-Debel, and TPS Group Services Pty Ltd (TPS) (collectively “the applicants”) seeking, among other things, an order that summonses for production and for examination addressed to them be set aside.

Background

1. The summonses were issued on the application of Mr Micheletto (Trustee) in his capacity of trustee of the bankrupt estate of Mr Bachar El-Debel (Bankrupt) pursuant or purportedly pursuant to s.81(1) of the Bankruptcy Act 1966 (Cth) (Act). That subsection provides as follows (emphasis in original):

   Where a person (in this section called the relevant person) becomes a bankrupt, the Court or a Registrar may at any time (whether before or after the end of the bankruptcy), on the application of:

   (a)a person (in this section called a creditor) who has or had a debt provable in the bankruptcy;

   (b)the trustee of the relevant person’s estate; or

   (c)the Official Receiver;

   summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy.

2. The Trustee applied for the summonses on 24 October 2018. With his application the Trustee lodged a draft of the summonses which included the following:

   a)A “Summons for examination” addressed to Ms El-Debel requiring her to appear before the Registrar to be examined under s.81 of the Act and to give evidence in relation to the examinable affairs of the Bankrupt, and also to “bring with you the books listed on the next page and produce them at the examination”.[1] On the next two pages of the draft there is listed documents relating to four companies – Fallow Investments Pty Limited, Jacgab Pty Limited, Sydney Energy Group Pty Limited, and “TPS Group Pty Limited” (sic).

   b)A “Summons for examination” addressed to Ms Ayad requiring her to appear before the Registrar to be examined under s.81 of the Act and to give evidence in relation to the examinable affairs of the Bankrupt, and also to “bring with you the books listed on the next page and produce them at the examination”.[2] On the next page of the draft there is listed documents relating to a number of matters.

   c)A “Summons for production” addressed to the “Proper Officer” of TPS requiring TPS “to produce documents listed in the following pages”.

   [1] Exhibit SH-1, page 1

   [2] Exhibit SH-1, page 4

3. Subrule 6.14(1) of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules) provides that a summons to an examinable person under s.81(1) of the Act “must be in accordance with Form B9”. Form B9 contains the following note on the front page of the summons:

   If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966. [ADD – if summons is addressed to a person other than the bankrupt] However, a warrant will not be issued if you were not given a reasonable amount for expenses

4. The draft summonses the Trustee lodged in relation to Ms El-Debel and Ms Ayad included the words: “If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966”, but not the words: “However, a warrant will not be issued if you were not given a reasonable amount for expenses”.

5. On 9 November 2018 a Registrar of the Court ordered that the Trustee be granted leave to file and serve a “Summons for Examination” on each of the persons identified in order 1 of the Registrar’s orders, and that the Trustee be granted leave to file and serve a “Summons for Production” on each of the persons identified in order 2 of those orders. Ms El-Debel and Ms Ayad are named in both order 1 and order 2 of the Registrar’s orders. The “Proper Officer” of TPS is named in order 2, but not in order 1 of the Registrar’s orders.

6. On 3 December 2018 an officer from the Court’s Registry telephoned the Trustee’s solicitor, Mr Hasip, and informed him that the Registrar had reviewed the Trustee’s application for the issue of the summonses for examination, and proposed to make an order to issue the summonses. The officer, however, informed Mr Hasip that the Registrar requested that each of the summonses be split into two documents, namely, a summons for examination, and a summons for production.[3]

   [3] Affidavit of  S Hasip, 08.03.2019, [7]

7. On 4 December 2018 Mr Hasip arranged to lodge with the Registry a number of draft summonses for examination and summonses for production. These included two documents each headed “Summons for examination” each addressed to Ms El-Debel and Ms Ayad, and two documents each headed “Summons for production” each addressed to Ms El-Debel and Ms Ayad. The drafts Mr Hasip arranged to lodge on 4 December 2018 are not in evidence, but it appears to be common ground that the documents described in those drafts are the same as the documents described in the draft summonses the Trustee lodged on 24 October 2018.

8. On 5 December 2018, after the Registrar’s orders of 9 November 2018 were made available on the Commonwealth Courts Portal, the Trustee filed the summonses for examination and the summonses for production directed to the persons identified in the Registrar’s orders of 9 November 2018. These included summonses for examination and the summonses for production addressed to Ms El-Debel and Ms Ayad. These summonses omitted the words: “However, a warrant will not be issued if you were not given a reasonable amount for expenses”.[4] The documents described in the filed summons for production addressed to Ms El-Debel are the same as the documents described in the draft summons for production addressed to Ms El-Debel the Trustee lodged with the Registrar.

   [4] Affidavit of  S Hasip, 08.03.2019, [8]; affidavit of R Ayad, annexures RA1 and RA2

9. The summonses for examination and the summonses for production addressed to Ms El-Debel and Ms Ayad were served on them by 15 December 2018.[5] According to Ms El-Debel she was served with the summons for examination and the summons for production on about 12 December 2018. She says her attention was immediately drawn to the words: “If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966”. Ms El-Debel says she “construed this to mean” she was “involved in some form of criminal litigation involving” the Bankrupt. She telephoned the Bankrupt who told her that the documents were “for my bankruptcy”, and that the reference to “arrest” applied “probably if you don’t comply with the court orders”.[6]

   [5] Exhibit SH-1, pages 32-41; affidavit of R Ayad, [8]

   [6] Affidavit of F El-Debel, [4]-[8]

10. According to Mr Hasip, on 26 February 2019 it became clear to him that, “due to a clerical error”, the summons for production addressed to Ms El-Debel had transposed to it the documents the Trustee intended to seek from a Ms Omar Rima, and the summons for production addressed to Ms Rima had transposed into it the documents the Trustee intended to seek from Ms El-Debel. That led Mr Hasip on 26 February 2019 to send an email to the Registry in which he said, among other things:

    It has come to our attention that the Summonses for Production addressed to Fatme El-Debel and Omar Rima were incorrectly collated and filed with the Registry (copies attached).

    In the circumstances, the filed Summons for Production of these examinees are not the same as the draft Summons [sic] for Production which were reviewed by Registrar Cho and for which orders granting leave to file were made.

    . . . . The correct Summons [sic] for Production have not been amended in any way from those for which Registrar Cho has previously granted leave to file.

11. On the same day an officer from the Registry telephoned Mr Hasip and said that Registrar Cho had reviewed Mr Hasip’s email, and he “indicated that leave is not required if leave has previously been granted to fill the documents in this form”.

12. By letter dated 20 February 2019 the solicitors for the applicant informed Ms Hasip of a number of matters, including the following:[7]

    a)Ms El-Debel holds no documents in her possession or control that answer the summons for production, but “she has instructed her accountant to produce documents to the Court and by reason of such direction has discharged her obligation under the Summons for Production”;

    b)TPS ordered its accountant to produce all documents “to the extent it pertains to” the Bankrupt’s bankruptcy; and

    c) the applicants seek to view material produced by other persons to whom the summonses for production had been served.

    [7] Affidavit of F El-Debel, pages 44-48

13. On 26 February 2019 Mr Hasip arranged to file a further summons for production addressed to Ms El-Debel (Second El-Debel Summons). As with the draft and files summonses for production addressed to Ms El-Debel, the Second El-Debel Summons does not contain the words: “However, a warrant will not be issued if you were not given a reasonable amount for expenses”. The documents described in the Second El-Debel Summons differ from the documents that were described in the draft. The documents relate to a property in Bankstown.[8]

    [8] Exhibit SH-1, page 108

14. On 27 February 2019 Mr Hasip sent an email to the solicitor for the applicants attaching the Second El-Debel Summons. Mr Hasip stated that “[d]ue to an administrative error, the incorrect page was inserted into the previous Summons for Production prior to it being filed with the Registry which has now been corrected”.[9]

    [9] Exhibit SH-1, page 167

15. Mr Hasip has deposed he unintentionally misled the Court for the following two reasons:[10]

    (a)by stating in my email [sent on 26 February 2019] that the First Summonses for Production addressed to Fatme El-Debel and Omar Rima were not the same as the draft Summonses for Production reviewed by Registrar Cho and for which orders granting leave to file were made. I now realise that the draft Summonses for Production reviewed by Registrar Cho for which orders granting leave to file were made are identical to the First Summonses for Production which I had filed with the Registry and which contain the incorrect schedule of documents seeking to be produced; and

    (b)by stating in my email [sent on 26 February 2019] that the Second Summonses addressed to Fatme El-Debel and Omar Rima and attached to my email . . . had not been amended in any way from those for which Registrar Cho had previously granted leave to file. As stated in the preceding subparagraph, I now realise that the draft Summonses for Production reviewed by Registrar Cho contained the incorrect schedule of documents the [Trustee was] seeking to have produced by Fatme El-Debel and Omar Rima and therefore the Summonses attached to my email . . . had been amended in a way which differed from those Registrar Cho had previously granted leave to file.

    [10] Affidavit of S Hasip, 08.03.2019, [44]

Grounds on which applicants rely

1. The applicants rely on a number of grounds in support of their application to set aside the summonses addressed to them (Applicants’ Grounds):

   a)It is an abuse of process for two summonses for production to have been issued calling for different classes of documents because that may cause confusion and oppression. This ground applies only to the summonses for production issued to Ms El-Debel.

   b)The Second El-Debel Summons called for documents for which the Registrar did not give the Trustee leave to have produced by the issuing of a summons for production.

   c)Neither the summons for examination nor the summons for production addressed to Ms El-Debel and Ms Ayad was in the prescribed form because both omitted the words “However, a warrant will not be issued if you were not given a reasonable amount for expenses”. For this reason these summonses are liable to be set aside first, because it is contrary to r.6.14 of the Bankruptcy Rules and, second, the omission of the words rendered the summonses misleading or potentially misleading because they do not inform the addressee of the summons that their potential liability to be arrested for not complying with the summonses was conditional on reasonable expenses being tendered to them.

   d)Subsection 81(1) of the Act does not empower the Court to issue a summons for the production of documents without the requirement to produce documents being ancillary to the requirement that the person be examined. This ground applies to the summonses for production addressed to all applicants.

   e)The summonses for production addressed to all applicants are not in the prescribed form because they only call for the production of documents.

   f)The summonses for production addressed to Ms Ayad and to TPS are oppressive, or they call for documents that extend beyond what is reasonably necessary to examine the Bankrupt’s affairs.

2. The Trustee makes a number of submissions. First, whatever defects the summonses might have, there has been substantial compliance with their requirements, and the evidence shows that none of the applicants have suffered or will suffer any detriment. Thus, the Court should, as a matter of discretion, decline relief even if the applicants succeed in establishing that one or more of the summonses is or are defective. Second, that there has been substantial compliance with the summonses to produce is evidence that the summonses for production are not oppressive or vexatious. Third, the Trustee does not propose to rely on the first filed summons for production addressed to Ms El-Debel. The Trustee submits the Court in its discretion should make an order nunc pro tunc authorising the issue of the Second El-Debel Summons.

3. Before I consider the grounds on which the applicants rely, and the parties’ competing submissions, it will be useful if I identify the source of the Court’s power to set aside the summonses, and the grounds on which the Court may set aside summonses issued pursuant or purportedly pursuant to s.81(1) of the Act.

Power to set aside summonses

1. There are two sources of power to set aside summonses issued pursuant or purportedly pursuant to s.81(1) of the Act. One is r.6.11(1) of the Bankruptcy Rules which provides that an “examinable person” served with a summons under s.81(1) of the Act may apply for an order to discharge the summons. One ground or set of grounds on which the summons may be discharged is if it constitutes an abuse of process or if it would be oppressive or vexatious to comply with its requirements. Another ground is if the preconditions for the making of an order have not been satisfied. And a third ground is where the summons that has been issued exceeds the bounds of the order purportedly pursuant to which the summons has been issued. The second source of power, which, perhaps, might be seen as the source of power for the making of r.6.11(1) of the Bankruptcy Rules itself, is s.30(1)(b) of the Act which provides that this Court may make such orders “as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any case or matter”.

2. The power given by s.81 of the Act “is an unusual and far-reaching one”, and “its use could easily become oppressive and vexatious if it is not approached responsibly by applicants for summonses, and controlled carefully by the Registrar and the court”.[11] On the other hand, the “power is exercised in the interests of creditors, and those interests should not be defeated by an unduly technical or restrictive approach to the use of the power”.[12] The procedure provided for by s.81 “is basically designed to establish what assets the bankrupt had, what has happened to those assets, and whether action should be begun”.[13] The summons “should be expressed in terms which make the intended areas of inquiry as clear as the circumstances of the case permit, and which specify as clearly as possible any books and records which the person summonsed has to produce”.[14]

   [11] Karounos v Official Trustee (1988) 19 FCR 330, page 335

   [12] Karounos v Official Trustee (1988) 19 FCR 330, page 335

   [13] Karounos v Official Trustee (1988) 19 FCR 330, page 335

   [14] Karounos v Official Trustee (1988) 19 FCR 330, page 335

Applicants’ Grounds (a) and (b)

1. It was not open to the Trustee to have filed the Second El-Debel Summons. The reason is not so much because it is an abuse of process or vexatious or oppressive for two summonses for production to be issued to the one person. The reason is that the Trustee was not authorised by the order the Registrar made on 9 November 2018 to file a summons calling for the production of the documents described in the Second El-Debel Summons. The Trustee was only authorised to issue a summons for production calling for the documents described in the draft summons for production the Trustee had lodged with the Court. For that reason, the Second El-Debel Summons is a nullity and is incapable of having any legal effect.

2. Ms El-Debel, therefore, succeeds on grounds (a) and (b) of the Applicants’ Grounds to the extent those ground relate to the Second El-Debel Summons.

Applicants’ Grounds (c)

1. That the summonses for production did not include the words: “However, a warrant will not be issued if you were not given a reasonable amount for expenses” (prescribed words) does not necessarily mean the summonses are of no effect or otherwise liable to be set aside. The legal significance of the omissions of the prescribed words must be assessed having regard to r.1.07(4) of the Bankruptcy Rules, which provides as follows:

   It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with an approved form if the document:

   (a)is substantially in accordance with the approved form and the Court’s requirements; or

   (b)has only such variations as the nature requires.

2. The question is whether notwithstanding the omission of the prescribed words the summonses for production and the summonses for examination can be said to be “substantially in accordance with” Form B9. That question is to be determined by assessing the purpose for which the prescribed form of summons requires the inclusion of the prescribed words, and whether the omission of the prescribed words substantially impairs that purpose.

3. The prescribed words are intended to form part of a discrete topic, namely, the consequences of the person who is served with a summons not complying with its requirements. The meaning this part of the prescribed form intends to convey is that if the person on whom the summons is served does not comply with it, a warrant for his or her arrest may be issued, but a warrant will not be issued if the person is not given a reasonable amount for expenses. To include, therefore, in the summons a statement that if the person served with the summons does not comply with its requirements may be arrested without also telling that person that he or she will not be arrested if the person is not given a reasonable amount for expenses, is to convey to the person a meaning that is substantially different from the meaning the prescribed form may reasonably be taken to have intended to convey to the person served with the summons. That would substantially defeat the purpose of that part of the summons that includes the prescribed words which, in turn, forms an important part of the summons for examination and the summons for production.

4. In those circumstances, it cannot be said that, notwithstanding the omission of the prescribed words, the summonses for examination and for production served on Ms El-Debel and Ms Ayad are substantially in accordance with the prescribed form of summons.

5. The applicants, therefore, succeed on ground (c) of the Applicants’ Grounds.

Applicants’ Grounds (d) and (e)

1. It may be accepted, as the applicants contend, that s.81 of the Act does not permit a summons to be issued requiring the production of documents without the production of documents being ancillary to the requirement that the person who is required to produce the documents be examined. I do not accept, however, that that is the effect of the summonses for production that have been issued. They require the person to whom the summons for production is addressed to attend before the Registrar. It is true they require the person to produce documents when they appear, and the summonses for production do not expressly state that the person must attend for the purpose of being examined and giving evidence. But it is not open to doubt that that is the purpose of the person being summoned to produce documents. The purpose is to examine the person about whether he or she has brought the documents described in the summons for production. That may well consist of no more than a few questions; but those questions would nevertheless constitute an examination.

2. It is also true that the form of the summonses for production does not accord with Form B9. Given, however, that, as I have found, the summons for production is as much a summons to appear for the purpose of being examined as is a summons for examination, the summonses for production are substantially in accordance with the approved form within the meaning of r.1.07(4)(a) of the Bankruptcy Rules. Additionally, or alternatively, there is an apparent advantage in having a form of summons, such as the summons for production, specifically formulated for cases where the sole purpose of requiring a person to attend before the Court is to be examined about whether the person has documents described in the summons for production. The form of the summons for production, therefore, could also be said to represent a variation to Form B9 as the nature requires, within the meaning of r.1.07(4)(b) of the Bankruptcy Rules.

3. Grounds (d) and (e) of the Applicants’ Grounds, therefore, fail.

Ground (f) of the Applicants’ Grounds

1. Counsel for the applicants submitted that some of the descriptions of the documents contained in the summonses for production addressed to TPS and to Ms Ayad call for documents that fall outside the permitted scope of s.81(1) of the Act. The question is whether the summonses for production call for documents that cannot reasonably be said to be intended “to establish what assets the bankrupt had, what has happened to those assets, and whether action should be begun”,[15] and whether the summonses are expressed in terms which do not “make the intended areas of inquiry as clear as the circumstances of the case permit, and which specify as clearly as possible any books and records which the person summonsed has to produce”.[16]

   [15] Karounos v Official Trustee (1988) 19 FCR 330, page 335

   [16] Karounos v Official Trustee (1988) 19 FCR 330, page 335

2. In my opinion, most of the documents described in the summons for production addressed to TPS cannot reasonably be taken to be intended to establish what assets the Bankrupt had, what has happened to those assets, and whether action should be begun. That is the case with the documents described in paragraph 1 (“[a]ll documents in respect of TPS . . . from the date of incorporation to current”), paragraph 2 (“[a]ll documents in respect of any trust TPS . . . may be acting in its capacity as trustee for”), paragraph 5 (“[a]ll correspondence between the Bankrupt and Ronya Ayad in respect of the management of TPS . . .”), paragraph 6 (“[a]ll documents in respect of Sammy El Debel’s directorships with TPS . . . including any correspondence with the Bankrupt in respect of Sammy’s resignation as director of the company”), paragraph 7 (“[a]ll documents in respect of any assets purchased by TPS . . . from the date of incorporation to date”), and paragraph 8 (“[a]ll documents in respect of the association between TPS  . . . and Jacgab”). Further, two of the seven classes of documents described in the summons for production cannot reasonably be said to make the intended areas of inquiry as clear as the circumstances of the case permit, or which specify as clearly as possible the books and records which the person summonsed has to produce. That is the case with the documents described in paragraph 4 ((“[a]ll documents detailing the Bankrupt’s role with TPS . . .”), and the documents described in paragraph 8 to which I have already referred.

3. On this analysis, only the documents described in paragraph 3 of the summons for production addressed to TPS withstand the challenge. That, however, (subject to the submissions of the Trustee which I will consider below) is not sufficient to save the summons from an order that it be discharged or set aside.

4. What I have said about the documents described in the summons for production addressed to TPS may also be said about most of the documents described in the summons for production addressed to Ms Ayad. Given the number of paragraphs of documents described in that summons for production, I do not propose to set out each paragraph. It would be sufficient if I set out some examples. Thus, there is paragraph 6 (“[a]ll documents relating to the alleged debt you owed the Bankrupt” without identifying what the alleged debt is); paragraph 9 (“[a]ll documents relating to your appointment or resignation over any entity”); paragraph 11 (“[a]ll documents in respect of TPS . . .”; and paragraph 15 (“[a]ll documents in respect of the connection between the Beverly Hills Property and Sydney Energy Group”). In my opinion, the summons for production addressed to Ms Ayad is liable to be discharged or set aside for the same reasons I have found the summons for production addressed to TPS is liable to be discharged or set aside.

5. Counsel or the Trustee submits that the fact that there has been substantial compliance is evidence that the summonses for production are not oppressive or do not go beyond the scope of the legitimate exercise of the power conferred by s.81(1) of the Act. I do not accept that submission. First, it has been asserted, rather than shown by evidence, that there has been substantial compliance with the summonses for production. Second, assuming there has been substantial compliance, that is no answer to the finding that documents called for by the summonses for production cannot reasonably be said to be intended to establish what assets the Bankrupt had, what has happened to those assets, and whether action should be taken.

6. TPS and Ms Ayad, therefore, succeed on ground (f) of the Applicants’ Grounds in relation to the summonses for production addressed to each of them.

Trustee’s submissions

1. Given the applicants have succeeded on grounds (a), (b), (c), and (f) of the Applicants’ Grounds, the summonses issued to each of the applicants are liable to be discharged. It remains for me to consider the Trustee’s submission that there has been substantial compliance with the summonses for production.

2. As I have already noted, it has been asserted, rather than shown by evidence, that there has been substantial compliance with the summonses for production. Even if it is accepted there has been substantial compliance with the summonses for production, that would not be a ground for my not discharging them. The Trustee does not submit the applicants have fully complied with their terms. And it cannot be said that the summonses for examination have been complied with at all. That means that, unless the summonses are discharged or set aside, there will remain on foot summonses that cannot be enforced because I have found they are each liable to be discharged. The Court’s permitting to remain on foot summonses issued by its authority in circumstances where those summonses are liable to be discharged is a state of affairs that cannot be tolerated.

3. I finally refer to the Trustee’s submission that I should make an order nunc pro tunc authorising the issue of the Second El-Debel Summons. Given I have found the Second El-Debel Summons does not substantially comply with the prescribed form, it is not within my power to make any such order.

Conclusion and disposition

1. Given the grounds on which I have held the applicants have succeeded, it follows that I should make an order discharging the summonses issued to each of the applicants. That includes the summons for production addressed to El-Debel filed on 5 December 2018 for the additional reason that the Trustee does not intend to rely on that summons. I also propose to order that any documents that have been produced in purported compliance with the summonses for production be returned to the applicants who produced them. That order is appropriate because, given I propose to discharge to summonses for production, the applicants should be placed in the position they would have been in had they not complied or purported to have complied with summonses I have held ought to be discharged.

2. As requested by counsel for the parties, I will reserve the question of costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 March 2019