Vitek v Taheri

[2012] FMCA 536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VITEK v TAHERI & ORS [2012] FMCA 536

BANKRUPTCY – Summonses – interim application to discharge summonses as abuse of process – consideration of proper purpose of s.81 of Bankruptcy Act 1966 (Cth) – whether summonses brought for improper purpose.

BANKRUPTCY – Summonses – where creditors brought application to summon wife of bankrupt – where wife and former trustees entered into Deed of settlement and release prior to removal of former trustees – where Deed related to the sale of properties of bankrupt to bankrupt’s wife by former trustees – where creditors seek to determine circumstances in which Deed came into existence – whether examination of wife is in relation to examinable affairs of bankrupt – where possibly in relation to examinable affairs of bankrupt if suggested purchase of properties for undervalue – where trustees have power to compromise claims with debtors of bankrupt estate – where trustee aware of creditors’ seeking to impugn Deed – whether Deed affirmed by trustee – whether purpose of examination to determine whether basis to challenge Deed exists – where creditors did not challenge Deed under s.178 of Act – whether examination of wife would serve any purpose – whether to set aside summons.

BANKRUPTCY – Summonses – where creditors brought application to summon two former trustees of bankrupt – where information sought from examination goes to conduct of former trustees – where challenge to conduct of trustees may form application under s.176 of Act – whether action under s.176 would be separate litigation – whether summons sought to aid litigation pending or likely to be instituted – whether to set aside summonses.

Bankruptcy Act 1966 (Cth), ss.5, 80, 81, 120, 121, 134, 176, 178, 179, 179A
Bankruptcy Legislation Amendment Act 1995
Conveyancing Act 1919 NSW, s.37A

Re Cheesman; Cheesman v Waters  [1997] 143 ALR 78
Turner v Official Trustee in Bankruptcy [1998] FCA 1558
Re H. J. Price (No.4) 14 ABC 142
Re Alafaci (1976) 9 ALR 262
Karounos and Others v Official Trustee (1988) FCR 330

Applicant: SHOSHANA VITEK

First Respondent: SIAMAC TAHERI

Second Respondent: VEEDA TAHERI

Third Respondent: ANDREW BARNDEN

Fourth Respondent: DANIEL JURATOWITCH

File Number: SYG 665 of 2012

Judgment of: Raphael FM

Hearing date: 13 June 2012

Date of Last Submission: 13 June 2012

Delivered at: Sydney

Delivered on: 22 June 2012

REPRESENTATION

Counsel for the Applicant: Mr S A Wells

Solicitors for the Applicant: Farrar Lawyers

Counsel for the First and Second Respondents: Mr M Sneddon

Solicitors for the First and Second Respondents: McLaughlin & Riordan

Solicitors for the Third and Fourth Respondents: ERA Legal

ORDERS

1. Summonses set aside.

2. Applicants to pay the costs of the Respondents to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 665 of 2012

SHOSHANA VITEK

Applicant

And

SIAMAC TAHERI

First Respondent

VEEDA TAHERI

Second Respondent

ANDREW BARNDEN

Third Respondent

DANIEL JURATOWITCH

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

1. These Reasons consider the…