Re Abbas; Ex parte Official Trustee in Bankruptcy

[1995] FCA 253

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION                 )
BANKRUPTCY DISTRICT OF THE       )       No NB 2605 of 1994
STATE OF NEW SOUTH WALES             )

Re:GADA ABBAS

Ex parte:GADA ABBAS

Applicant

AND:THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:6 April 1995

REASONS FOR JUDGMENT

There has been referred to me today as Duty Judge an application which was filed in the Registry on 24 March 1995 by the bankrupt, Gada Abbas.  She became a bankrupt on 10 November 1994 on acceptance by the Registrar of her own petition which bears date 9 November 1994. 

The Official Trustee in Bankruptcy, in performance of his duties as trustee of the estate of the bankrupt, caused to be issued a summons under s 81 of the Bankruptcy Act 1966 ("the Act") requiring the bankrupt to attend before the Registrar today for the purpose of being examined and giving evidence in connection with her affairs. The summons bears date 7 March 1995.
On 24 March 1995, the bankrupt filed in the Registry an application for an order setting aside the debtor's petition and annulling of the bankruptcy.  As well, by that application the bankrupt sought an order staying the examination fixed for today.  Unfortunately, due to an oversight, that application was made returnable on 2 May 1995, that is to say, after the date fixed for the examination.  In consequence, the bankrupt finds herself today about to be examined.  The solicitor appearing for her, Mr Sarroff, has caused the file to be brought before me urgently as Duty Judge for the purpose of pressing for a stay of the examination.  That is opposed by the Official Trustee in Bankruptcy.

The only evidence before the Court at present is the affidavit of the bankrupt sworn 24 March 1995 in support of her application.  I do not find it necessary to give an account of the whole of that affidavit.  What is important for present purposes is that it contains evidence that the bankrupt received no legal or financial advice about becoming a bankrupt and "acted on the advice of David Dickie, a Sheriff's Officer of the Local Court" who attended at her home with a writ of execution.  From the expression "acted on the advice of" I conclude that the bankrupt is saying that Mr Dickie advised her to file a debtor's petition.  I hasten to add that there is no evidence before the Court from the sheriff's officer and it should not be thought that I accept, in a final sense, the bankrupt's evidence.  The simple fact is that the only evidence before me at present is the bankrupt's
affidavit.

In the event that an annulment should ultimately be granted, its purpose will have been defeated the purpose of annulment if, in the meanwhile, bankruptcy procedures including the present examination, are enforced. 

It seems to me that the question is whether there is at least a serious question to be tried whether there should be an annulment.  Again, on the basis of nothing more than the debtor's affidavit, I think that there is.  This does not, of course, indicate at all whether the application for annulment will ultimately succeed after there is evidence filed, as apparently there will be, in opposition to it.

However, I think that the appropriate course, on the footing of the evidence before me, is that I make an order generally to the effect of that sought by the bankrupt;  that is, for a stay of the examination pending the determination of the application for annulment.

Accordingly, firstly, I order that further examination of the bankrupt pursuant to the summons issued under sub-s 81 (1) of the Act dated 7 March 1995, be stayed pending the hearing and determination of her application for annulment of the bankruptcy. Secondly, I reserve to the Official Trustee in Bankruptcy, as trustee of the bankrupt estate, the right to apply on 48 hours' notice for a lifting of that stay.
Thirdly, I record that it seems to me that the application for annulment should be dealt with as soon as the commitments of the Court make this practicable.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:27 April 1995

Heard:       6 April 1995

Place:       Sydney

Decision:     6 April 1995

Appearances:  Mr J Sarroff, solicitor, of John Sarroff & Co, appeared for the bankrupt.

Mr P Stern, solicitor, appeared for The Official Trustee in Bankruptcy.