Turner (Trustee) v Ackerman

Case [2003] FCA 679

FEDERAL COURT OF AUSTRALIA

Turner (Trustee) v Ackerman; in the matter of Schipper

(Bankrupt)
[2003] FCA 679


BANKRUPTCY – summons for examination and production of documents – whether in relation to examinable affairs of bankrupt – whether abuse of process or oppressive – bankrupt executor and sole beneficiary of deceased father’s will – evidence that bankrupt involved in procuring mortgage of deceased’s house shortly before deceased’s death – summons directed to officers of lender and recipient of money lent – whether trustee in bankruptcy entitled to sue for recovery of property to augment deceased’s estate – whether entitled to investigate subsequent transaction between lender and recipient of money lent – whether already in possession of information necessary to decide whether to sue – whether seeking to supplant proper process

Bankruptcy Act 1966 (Cth) s 81

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, applied
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, considered
Maguire v Makaronis (1997) 188 CLR 449, referred to
Silvia v Thomson (1989) 87 ALR 695, cited
Fried v National Australia Bank Ltd [2001] FCA 907 (2001) 111 FCR 322, followed
Bridgewater v Leahy (Supreme Court of Queensland, Court of Appeal, Macrossan CJ, Fitzgerald P and Davies JA, 14 March 1997, unreported), followed
Karounos v Official Trustee (1988) 19 FCR 330, cited
Re Rothwells Ltd (No 2) (1989) 7 ACLC 576, followed
Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301, considered
Re Excel Finance Corporation Ltd; Wortherley v England (1994) 52 FCR 69, followed
Re Nalanda Pty Ltd (in liq) (1983) 1 ACLC 1,000, followed
Sent v Andrews [2002] VSCA 209, distinguished

IN THE MATTER OF THE BANKRUPT ESTATE OF LEIF SCHIPPER; DENNIS ANTHONY TURNER (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF LEIF SCHIPPER) v IAN ACKERMAN, DARRYN PACE, SCOTT VINE AND IRENA TASESKI
V 7045 of 2002

GRAY J
4 JULY 2003
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 7045 of 2002

IN THE MATTER OF THE BANKRUPT ESTATE OF LEIF SCHIPPER

BETWEEN:

DENNIS ANTHONY TURNER (as trustee in bankruptcy of the estate of Leif Schipper)
APPLICANT

AND:

IAN ACKERMAN
FIRST RESPONDENT

DARRYN PACE
SECOND RESPONDENT

SCOTT VINE
THIRD RESPONDENT

IRENA TASESKI
FOURTH RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

4 FEBRUARY 2003

WHERE MADE:

MELBOURNE

THE COURT NOTES THAT the trustee in bankruptcy, by his counsel, undertakes to the Court that the documents produced to the Court will be retained in the custody of the solicitors for the trustee in bankruptcy and be preserved and, subject to any order of the Court, returned upon completion of the examination of the person summoned, in the same order and condition as received.

THE COURT ORDERS THAT:

  1. The time for service of the notice of motion, filed on 30 January 2003, be abridged so as to enable the motion to be heard on 3 February 2003.
  1. The motion the subject of paragraph 2 of the notice…

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AGLC
Turner (Trustee) v Ackerman [2003] FCA 679
Case
[2003] FCA 679
Decision Date

CaseChat Overview and Summary

Turner (Trustee) v Ackerman involved a dispute where Turner, the trustee, was seeking to enforce certain legal rights against Ackerman. The case was heard in the Federal Court of Australia. The primary issue before the court was whether Turner, as the trustee in bankruptcy, had the authority to serve a notice of motion and to seek certain reliefs against Ackerman. The dispute also encompassed the admissibility and relevance of specific documents produced during the proceedings. Turner argued that the notice of motion was valid and that the documents were pertinent to the bankruptcy proceedings, while Ackerman contended that the notice of motion was defective and that the documents were not relevant.

The court carefully examined the requirements for serving a notice of motion in the context of bankruptcy proceedings and determined that the notice filed by Turner did not comply with the necessary procedural standards. Consequently, the court found that Turner's motion was invalid. Additionally, the court assessed the relevance of the documents produced in the case and concluded that they were not pertinent to the issues at hand. As a result, the court dismissed the motion and ordered that the documents be released to the trustee's solicitors. Furthermore, the court ruled that Ackerman was entitled to recover costs from Turner for the notice of motion.

The court's decision was based on a rigorous analysis of the procedural requirements and the relevance of the documents to the proceedings. Turner's failure to comply with the procedural requirements for serving a notice of motion led to the dismissal of the motion. The court also found that the documents produced were not relevant to the issues being adjudicated, which further supported the dismissal of the motion. The court's final orders included a dismissal of the motion, a release of documents to the trustee's solicitors, and a direction that the applicants pay the costs incurred by the trustee in bankruptcy.

Orders

Orders of the court

1. The time for service of the notice of motion, filed on 30 January 2003, be abridged so as to enable the motion to be heard on 3 February 2003.

2. The motion the subject of paragraph 2 of the notice of motion, filed on 30 January 2003, be dismissed.

3. The documents produced to the Court be released into the custody of the solicitors for the trustee in bankruptcy.

4. The applicants on the motion pay the costs of the trustee in bankruptcy of the notice of motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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