Ambrose (Trustee), in the matter of Little (Bankrupt) v Little [2002] FCA 877

Ambrose (Trustee), in the matter of Little (Bankrupt) v Little [2002] FCA 877

Section 123(6) did not prevent the trustee from using s 81 to investigate the facts surrounding the transfer of the former matrimonial property before commencing any s 121 proceedings. The summons was therefore not premature or improper, and prior production of documents was a matter to be raised on the return of the summons rather than a basis for setting it aside.

Jurisdiction
Australia
Judgment Date
03 July 2002
Procedural Posture
Bankruptcy Matter / Notice of Motion Seeking to Set Aside a S 81 Examination Summons, an Inquiry Under S 179, Removal of a Caveat Under S 178, and Restraint of the Trustee; Heard Before the Return of the Summons
Outcome
Application to set aside the summons dismissed; directions made for evidence on the s 179 application; other aspects of the notice of motion adjourned; costs reserved.
Legal Topics
['examination of Bankrupt Under S 81' 'void Transfers and Caveatable Interests' 'maintenance Agreements or Orders and S 123(6)' 'inquiry Into Trustee Conduct Under S 179' 'removal of Caveat' 'interim Restraint of Trustee']
['bankruptcy Law' 'federal Court Procedure'] ['examination of Bankrupt Under S 81' 'void Transfers and Caveatable Interests' 'maintenance Agreements or Orders and S 123(6)' 'inquiry Into Trustee Conduct Under S 179' 'removal of Caveat' 'interim Restraint of Trustee']

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Procedural Posture

Bankruptcy Matter / Notice of Motion Seeking to Set Aside a S 81 Examination Summons, an Inquiry Under S 179, Removal of a Caveat Under S 178, and Restraint of the Trustee; Heard Before the Return of the Summons

Legal Issues

  1. 1 ['Whether the s 81 summons requiring the bankrupt to attend for examination and produce documents should be set aside because proceedings under s 121 had not yet been commenced.' 'Whether s 123(6) of the Bankruptcy Act 1966 prevented inquiry by the trustee into the transfer of the former matrimonial property unless and until s 121 proceedings were on foot.' 'Whether alleged prior production of books and documents justified setting aside the summons.' "What procedure should be followed on the bankrupt's request for an inquiry into the trustee's conduct under s 179." 'Whether the trustee should be restrained from acting as trustee pending the s 179 application.' 'Whether the caveat over the former matrimonial property should be removed at this stage.']

Ratio Decidendi

Section 123(6) did not prevent the trustee from using s 81 to investigate the facts surrounding the transfer of the former matrimonial property before commencing any s 121 proceedings. The summons was therefore not premature or improper, and prior production of documents was a matter to be raised on the return of the summons rather than a basis for setting it aside.

Court Disposition

Application to set aside the summons dismissed; directions made for evidence on the s 179 application; other aspects of the notice of motion adjourned; costs reserved.

Orders

  • ['The application in par 1 of the notice of motion to set aside the summons dated 14 June 2002 is dismissed.' 'Direct the bankrupt, Patricia Anne Little, to file affidavit material in admissible form identifying the conduct of the trustee which it is alleged constitutes ground for an inquiry under s 179 of the...