Re Hodby, R.D. v Ex parte Official Trustee - [1988] FCA 94

Re: ROSS DANIEL HODBY
Ex parte: OFFICIAL TRUSTEE; SOPHIA KAROUNOS; ELIAS KAROUNOS; KATINA KAROUNOS
and BARBARA JOY HUNT
No. 910 of 1986
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Fisher J.(1)

CATCHWORDS

Bankruptcy - public examination - application to set aside summonses to attend for public examination - whether summonses in circumstances were vexatious or oppressive - sufficiency of material before Registrar to justify issue of the summonses - whether summonses were in terms too wide.

Bankruptcy Act 1966 s.81

HEARING

ADELAIDE

#DATE 11:3:1988

Counsel for the Applicants: Mr. D. Lovell

Solicitors for the Applicants: Mr. G. Palassis Andersons.

Official Trustee: Mr. M. Barrett Kelly & Co.

ORDER

The applications to discharge the summonses other than the summons directed to Barbara Joy Hunt relating to Domitix Pty. Ltd. be dismissed.

The application in respect of the summons directed to Barbara Joy Hunt as aforesaid be adjourned for further consideration.

The time for filing and serving any notice of appeal commence from the delivery of reasons for these orders.

The examinations of the applicants be stayed prior to 5.00 p.m. on Tuesday 22 March 1988.

The applicants do pay to the Official Receiver in any event his costs thrown away by the adjournment of the examinations of the applicants.

Further consideration of the question of costs of the applications be adjourned to a date to be fixed.

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

JUDGE1

On 1 March 1988 I made certain orders in this matter and undertook to publish my reasons in due course. These are my reasons for making the orders.

The Official Trustee is trustee of the bankrupt estate of Ross Daniel Hodby ("the bankrupt") who filed his own petition on 15 October 1986. Since that date the Official Receiver for the Bankruptcy District of South Australia ("the Official Receiver") and other persons interested in the administration of the bankrupt estate have made many applications to the Court for decisions and directions in respect of relevant matters. To date there have been at least 45 such applications and five sets of reasons for judgment of this Court have illustrated the difficulties encountered in the administration of the bankrupt's estate. In respect of this particular matter my reasons for judgment delivered on 16 April 1987 in matter 910/11 of 1986 recite in some detail the nature of these difficulties.
This particular matter arises out of four summonses issued by the Registrar in Bankruptcy, one to each of the applicants, directing their attendance for examination under s.81 of the Bankruptcy Act 1966 ("the Act"). There was an additional summons directed to the applicant Barbara Joy Hunt in relation to the acquisition by Domitix Pty. Ltd. of the business of the bankrupt. An application has been made by the applicants seeking orders that the Court discharge or otherwise set aside the summonses issued to them. Consideration of this summons has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 94
Decision Date: 11 MARCH 1988

CaseChat Overview and Summary

The case before the court involved multiple applicants who sought to discharge summonses requiring them to attend a public examination as part of bankruptcy proceedings against R.D. Hodby. The Official Trustee, acting in his capacity to investigate Hodby's bankruptcy, had issued the summonses. The applicants argued that the summonses were vexatious or oppressive, lacked sufficient material to justify their issuance, and were overly broad in their terms. The applicants, including Barbara Joy Hunt in relation to Domitix Pty. Ltd., sought relief from attending the public examination.

The primary legal issues before the court were whether the summonses were vexatious or oppressive, whether there was sufficient material to justify their issuance, and if the terms of the summonses were too wide. The court had to determine whether the summonses met the threshold for being oppressive or vexatious under the relevant bankruptcy legislation and whether the Official Trustee had acted within his powers in issuing them.

The court found that the summonses, with the exception of the one directed to Barbara Joy Hunt in relation to Domitix Pty. Ltd., were not vexatious or oppressive and were issued with sufficient material. The court held that the summonses were not overly broad and were justified under the circumstances. Consequently, the court dismissed the applications to discharge the summonses except for the one concerning Barbara Joy Hunt and Domitix Pty. Ltd. This particular application was adjourned for further consideration. The court also stayed the examinations of the applicants and ordered them to pay the Official Receiver's costs incurred due to the adjournment. The further consideration of costs for the applications was adjourned to a later date.

Orders

Orders of the court

The applications to discharge the summonses other than the summons directed to Barbara Joy Hunt relating to Domitix Pty. Ltd. be dismissed.

The application in respect of the summons directed to Barbara Joy Hunt as aforesaid be adjourned for further consideration.

The time for filing and serving any notice of appeal commence from the delivery of reasons for these orders.

The examinations of the applicants be stayed prior to 5.00 p.m. on Tuesday 22 March 1988.

The applicants do pay to the Official Receiver in any event his costs thrown away by the adjournment of the examinations of the applicants.

Further consideration of the question of costs of the applications be adjourned to a date to be fixed.

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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