Damjanovic v Spehar [1999] FCA 392

Damjanovic v Spehar [1999] FCA 392

The summons was discharged because there was no sufficient evidence that Mr Maley was an examinable person under s 5 of the Bankruptcy Act 1966 (Cth). Any information or documents he had appeared to have been acquired as Mr Damjanovic's solicitor, there was no basis for para (e) of the definition, and the allegations of fraudulent conspiracy lacked an evidentiary foundation sufficient to bring him within para (d).

Jurisdiction
Australia
Judgment Date
23 March 1999
Procedural Posture
Motion Under O 77, R 38 of the Federal Court Rules to Discharge a Summons to Attend an Examination Under S 81 of the Bankruptcy Act 1966 (cth) / Ex Tempore Reasons for Judgment and Orders
Outcome
Summons discharged; applicant ordered to pay Christopher Maley's costs of the notice of motion.
Legal Topics
['bankruptcy Examination Summons' 'examinable Person' 'discharge of Summons' 'improper Purpose' 'oppressive Process']
['bankruptcy' 'civil Procedure'] ['bankruptcy Examination Summons' 'examinable Person' 'discharge of Summons' 'improper Purpose' 'oppressive Process']

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Procedural Posture

Motion Under O 77, R 38 of the Federal Court Rules to Discharge a Summons to Attend an Examination Under S 81 of the Bankruptcy Act 1966 (cth) / Ex Tempore Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether Christopher Paul Maley was an examinable person within the definition in s 5 of the Bankruptcy Act 1966 (Cth) for the purposes of examination under s 81.' 'Whether the summons should be discharged because it was served for an improper purpose or was oppressive.']

Ratio Decidendi

The summons was discharged because there was no sufficient evidence that Mr Maley was an examinable person under s 5 of the Bankruptcy Act 1966 (Cth). Any information or documents he had appeared to have been acquired as Mr Damjanovic's solicitor, there was no basis for para (e) of the definition, and the allegations of fraudulent conspiracy lacked an evidentiary foundation sufficient to bring him within para (d).

Court Disposition

Summons discharged; applicant ordered to pay Christopher Maley's costs of the notice of motion.

Orders

  • ['The summons to attend an examination served on Christopher Maley on 30 November 1998 by the applicant be discharged.' "The applicant pay Christopher Maley's costs of the notice of motion."]