Re Jonson, Keith Michael; Ex Parte Prentice, Maxwell William as the Trustee of the Estate of Keith Michael Jonson, a bankrupt, Official Receiver for the Bankruptcy District of the State of New South Wales v Jonson, Vera & Anor [1997] FCA 868

Re Jonson, Keith Michael; Ex Parte Prentice, Maxwell William as the Trustee of the Estate of Keith Michael Jonson, a bankrupt, Official Receiver for the Bankruptcy District of the State of New South Wales v Jonson, Vera & Anor [1997] FCA 868

The notices were not set aside because their essential purpose was to obtain information about the bankrupt's property, affairs, income and assets, and to examine the circumstances of the transfers of properties. Although the trustee's agent was aware of s 81G and its possible consequences, that awareness was not central to the purpose of issuing the notices, and the Court was not satisfied that the notices were issued for an improper forensic purpose such as a dress rehearsal of cross-examination.

Jurisdiction
Australia
Judgment Date
01 September 1997
Procedural Posture
Bankruptcy Motion Concerning Notices Issued by the Official Receiver Under S 77 C(1) of the Bankruptcy Act 1966 / Notice of Motion to Set Aside Two Notices Dated 18 July 1997
Outcome
The notice of motion of Mrs Jonson and Mrs MacDonald was dismissed with costs.
Legal Topics
["official Receiver's Power to Obtain Information and Evidence" "trustee Investigations Into Bankrupt's Property and Affairs" 'notices to Third Parties to Give Evidence and Produce Books and Documents' 'proper Purpose and Abuse of Process' 'use of Examination Powers Where Related Proceedings Are on Foot']
['bankruptcy' 'insolvency' 'civil Procedure'] ["official Receiver's Power to Obtain Information and Evidence" "trustee Investigations Into Bankrupt's Property and Affairs" 'notices to Third Parties to Give Evidence and Produce Books and Documents' 'proper Purpose and Abuse of Process' 'use of Examination Powers Where Related Proceedings Are on Foot']

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Procedural Posture

Bankruptcy Motion Concerning Notices Issued by the Official Receiver Under S 77 C(1) of the Bankruptcy Act 1966 / Notice of Motion to Set Aside Two Notices Dated 18 July 1997

Legal Issues

  1. 1 ['Whether the two notices issued by the Official Receiver under s 77C(1) of the Bankruptcy Act 1966 should be set aside.' 'Whether the notices were issued for an improper purpose, namely to obtain a dress rehearsal of cross-examination or a forensic advantage in substantive proceedings to set aside property transfers.' "Whether the trustee's awareness of the consequences of s 81G of the Bankruptcy Act 1966 made the notices improper." 'Whether s 77C could be used to obtain information and documents about transactions impeached in current litigation commenced or continued by the trustee.']

Ratio Decidendi

The notices were not set aside because their essential purpose was to obtain information about the bankrupt's property, affairs, income and assets, and to examine the circumstances of the transfers of properties. Although the trustee's agent was aware of s 81G and its possible consequences, that awareness was not central to the purpose of issuing the notices, and the Court was not satisfied that the notices were issued for an improper forensic purpose such as a dress rehearsal of cross-examination.

Court Disposition

The notice of motion of Mrs Jonson and Mrs MacDonald was dismissed with costs.

Orders

  • ['The notice of motion dated 4 August 1997 of Mrs Jonson and Mrs MacDonald is dismissed with costs.']