Re Miller, Gary Ex Parte The Official Trustee in Bankruptcy [1995] FCA 1118

Re Miller, Gary Ex Parte The Official Trustee in Bankruptcy [1995] FCA 1118

The summons was struck out because the supporting affidavit failed to comply with rule 129 by not detailing inquiries and requests to the examinee, and because the summons failed to properly limit the subject to the affairs of the bankrupt as required under section 81(1).

Parties
Applicant/examinee: Felicity May Edwards; Respondent/trustee: The Official Trustee in Bankruptcy; Bankrupt: Gary Miller
Jurisdiction
Australia
Judgment Date
23 October 1995
Procedural Posture
Application to Strike Out Bankruptcy Examination Summons / First Instance Judgment
Outcome
Summons struck out; costs order against the Trustee
Legal Topics
Examination of Persons in Bankruptcy, Procedure—issue of Summons, Requirements for Supporting Affidavit
Bankruptcy Examination of Persons in Bankruptcy Procedure—issue of Summons Requirements for Supporting Affidavit

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Parties

Felicity May Edwards

Applicant/examinee

The Official Trustee in Bankruptcy

Respondent/trustee

Gary Miller

Bankrupt

Procedural Posture

Application to Strike Out Bankruptcy Examination Summons / First Instance Judgment

Legal Issues

  1. 1 Whether a summons issued under section 81(1) of the Bankruptcy Act for examination of Felicity Edwards complied with procedural rules
  2. 2 Whether the summons was valid given that it referred to the affairs of the examinee rather than the bankrupt
  3. 3 Whether the supporting affidavit complied with rule 129 of the Bankruptcy Rules

Ratio Decidendi

The summons was struck out because the supporting affidavit failed to comply with rule 129 by not detailing inquiries and requests to the examinee, and because the summons failed to properly limit the subject to the affairs of the bankrupt as required under section 81(1).

Court Disposition

Summons struck out; costs order against the Trustee

Orders

  • The summons issued to Felicity May Edwards is struck out.
  • The Trustee is ordered to pay the examinee's costs.