Re Shaw, Leila & Anor

[1998] FCA 383

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7159 of 1998 NG 7160 of 1998

RE:	LEILA SHAW AND GEORGE THOMAS SHAW Bankrupts
EX PARTE:	THE OFFICIAL TRUSTEE IN BANKRUPTCY Trustee of the Estate of the Bankrupts
JUDGE:	BURCHETT J
DATE:	7 APRIL 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

These summonses were issued following the ignoring by the bankrupts of requests from the Trustee to lodge their statements of affairs.  They had been made bankrupt by orders of Branson J made on 23 October 1997, against which they have appealed.  The appeal books have been prepared, but the appeals have not yet been heard.  They are due to be heard in the next sittings, probably in June or July of this year.  On 21 November last, the bankrupts each applied to Tamberlin J for a stay of the respective sequestration orders.  These applications were dismissed by him on the same day.

The purpose of the examinations under s 81 of the Bankruptcy Act 1966, I have been told, is to obtain the information which would have been obtained had statements of affairs been duly filed, as required by s 54 of the Act. The applications for stays having been dismissed, there is no doubt about the obligation which rested upon each of the bankrupts under s 54.

The application now made to me is by way of review of the refusal of Registrar Quilter to adjourn the summonses until after the hearing of the appeals.  In support of it, Mr Thomas Shaw (who appeared by leave for his parents, the bankrupts) has put that the right of appeal carries with it a right to have the matter not dealt with until the appeal has been decided, and that it would be embarrassing and inconvenient for his parents to be required to give answers about their assets and income in advance of the hearing of the appeal.  Mr Shaw’s argument was sought to be supported by the tender of two letters, written on behalf of the Official Trustee, and some evidence from Mr George Thomas Shaw; and again, it was suggested, on the basis of this material, that the applicants believe they have a right not to disclose their affairs, and that it is not the Trustee’s business to know.  Having regard to the terms of s 19 of the Act, I am quite satisfied that it is the Trustee’s business to know; and it is more than that, it is his duty imposed upon him by the Act to ascertain the facts.

There having been no stay granted of the sequestration orders, from which refusal of a stay it may be noted there has been no appeal, I am satisfied it is appropriate that without delay the Official Trustee complete his duty of ascertaining the facts.  I do not accept that anything which has been put, either in argument by Mr Thomas Shaw, or in evidence by Mr George Thomas Shaw, would require or justify my adjourning the summonses.

Accordingly, I refuse the applications with costs, including the costs of 18 March, and direct that Mr and Mrs Shaw attend before the Registrar at 2.15 this afternoon, and until excused by the Registrar.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated:            20 April 1998

For the Bankrupts (by leave):	Mr T Shaw
Counsel for the Official Trustee:	Mr M Condon
Date of Hearing:	7 April 1998
Date of Judgment:	7 April 1998