Re Huybrechts, A.D. Ex Parte Margaret Huybrechts & Ors v Knight, D.W

[1991] FCA 899

JUDGMENT NO. .-........ ....... ..- 8sst sr

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	1 No. QB 734 of 1989
STATE OF OUEENSLAND	)

RE:  ANTONTHEO DORUS HUYBRECHTS

EX PARTE: MARGARET HUYBRECHTS, MARCUS JAMES KITCHEN. AMANDA MAREE HUYBRECHTS AND MICHAEL JAMES MANKEY

Appl icants

DESMOND WILLIAM KNIGHT

Respondent

W: PINCUS J.

PLACE: BRISBANE

DATE:  20 SEPTEMBER 1991 29 ]RN 19g2

EX TEMPORE REASONS FOR JUDGMENT

In this matter, the order which was proposed was that the costs should be paid by the respondent in favour of the applicant. Mr. Hack has drawn my attention to a matter which I had overlooked, that is, that Rule 129(2) of the Bankruptcy Rules was not complied with, and it reads as

the Registrar: 

follows :

"If the application is one to whjch paragraph

(l)(c) applies, a copy of the application and of the affidavit in support of the application shall be served on the person whom it is sought to examine, and that person may, within 7 days of being aerved with those documents, file with

(a)	a notice of objection to produce the books or classes of books specified in the application for a direction, or such of those books or classes of books as the notice may specify; and
(b)	an affidavit setting out the grounds of the objection".

The reference to paragraph (l)(c) is to paragraph a requirement mentioned in S. 81(1B) of the Act, and (l) (c) says that in those circumstances the summons must "specify the books or classes of books that the person is to produce at the examination." (l) (c) of the same rule, which refers to a summons containing

I have said in my reasons, and I think it correct, that the intention of the Rules is that the only means of objection before the Registrar is that set out in Rule 129(2). That, however, appears to me to be rather a narrow sort of an

objection. It relates only to books, or classes of books. Here, the summonses - all four of them - were concerned with production of documents also giving information.

Therefore, it is not at all clear that the type of objection which was taken would have been properly taken under Rule 129(2); that is, the basic objection was simply that the Rules had not been complied with at all in respect of the important matter of making a request for voluntary compliance. To put that less elaborately, whereas Rule 129(2) might have been complied with, it was not necessarily the appropriate way to raise this objection.

The other reason why I decided to order the costs against the trustee is that the deficiency in the proceedings was one which did, if I may say so, with respect, result essentially from a failure to comply with a plain provision of the Rules. It is true that in some respects, and in particular in relation to one of the four applicants, there was compliance, but I should have thought it was simple enough, particularly for the trustee, who is regularly engaged in work of this sort, to have an up-to-date copy of the Rules.

The Rules relating to summonses of this sort are not really very complicated, and I think the trustee should comply with them. If he had done so, it is true that other questions would have arisen, such as the matter of whether or not the summonses were too wide, but basically I do not see why the trustee should not at least make an attempt to follow rules where the rules are plainly set out, and indeed have been in force for a couple of years before this happened.

Therefore, despite the - as is usual - able and succinct argument advanced by counsel for the trustee, I will adhere to the intention I expressed in my orders.	I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr Justice Pincus
L- Associate
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