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

[1990] FCA 796

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.

1. 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.

2. 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.

3. In those circumstances there is no material to support an application for further discovery and the application is dismissed.
   (Discussion)

4. I order that Knit-away Pty Limited pay the Official Trustee's costs.