Re Passaro, T.J. v Official Trustee in Bankruptcy Knit-Away Pty Ltd

Re: THOMAS JOHN PASSARO (Bankrupt) OFFICIAL TRUSTEE IN BANKRUPTCY
And: KNIT-AWAY PTY LIMITED
No. N B434 of 1988
FED No. 796

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Einfeld J.(1)

HEARING

SYDNEY

#DATE 17:12:1990

JUDGE1

An application is before the court from Knit-away Pty Ltd for further and better discovery by the Official Trustee in Bankruptcy. Knit-away claims certain files and other documents which it says were or would have been created by the bankrupt when he was a solicitor, are or would be in the possession or ought to be in the possession and control of the Official Trustee, and have not been discovered.

There is no evidence before me that these files existed although it would easily have been possible to establish that the transactions to which the majority of them purport to relate would have been the subject of files by any ordinary solicitor carrying out his practice in the appropriate way. Even assuming that such files did exist and accepting that all of them would be relevant and appropriate to be discovered in these proceedings, the evidence is that the Official Trustee not only does not have such documents, but that efforts to ascertain them or find out even if they existed have thus far revealed nothing.
There is no material before the court that suggests that the Official Trustee is withholding relevant and discoverable material under the rules applicable to discovery, nor that any of the documents which are sought have ever been in the possession, custody or control of the Official Trustee or even available to the Official Trustee.
In those circumstances there is no material to support an application for further discovery and the application is dismissed.
(Discussion)
I order that Knit-away Pty Limited pay the Official Trustee's costs.

CaseChat Overview and Summary

The case involves an application by Knit-away Pty Ltd for further and better discovery against the Official Trustee in Bankruptcy in relation to the bankruptcy of Thomas John Passaro. The applicant seeks specific files and documents that it believes were created by Mr. Passaro during his time as a solicitor. These documents are claimed to be in the possession or control of the Official Trustee. The matter was heard by Einfeld J. in the Federal Court of Australia, specifically in the Bankruptcy Division, on 17 December 1990.

The primary legal issue the court had to address was whether the Official Trustee was in possession of the requested documents and, if not, whether there was a duty to discover them. The applicant argued that the documents were relevant and necessary for their case, and that the Official Trustee should have been able to produce them. The court needed to determine if there was sufficient evidence to support the claim that the Official Trustee had or should have had these documents and whether the Official Trustee was withholding discoverable material.

In considering the application, the court found that there was no evidence presented to establish the existence of the files in question. Furthermore, even if the files did exist, the evidence showed that the Official Trustee did not possess them and had made efforts to locate them without success. The court concluded that there was no material to support the claim that the Official Trustee was withholding relevant discoverable material, nor any evidence that the documents had ever been in the Official Trustee's possession or control. Therefore, the application for further discovery was dismissed.

As a result of the dismissal, the court ordered that Knit-away Pty Ltd pay the Official Trustee's costs. This decision underscores the importance of providing concrete evidence to support claims for discovery in bankruptcy proceedings.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established