Cumins, Anthony & Anor v Newman, Diane Denise [1997] FCA 1498

Cumins, Anthony & Anor v Newman, Diane Denise [1997] FCA 1498

The summons should not be set aside because the transfer of the Parkdale Cash Converters business from Goldstone Investments Pty Ltd, controlled by the bankrupt, to Spring Enterprises Pty Ltd, of which the applicant was sole director, was sufficiently relevant to the bankrupt's examinable affairs and possible challenges under Part 6 of the Bankruptcy Act. The applicant's assertion that he had no further information did not require the trustee to accept his affidavit without examination, and there was no evidence that the trustee withheld relevant information, acted improperly, or pursued a mere fishing expedition.

Jurisdiction
Australia
Judgment Date
28 November 1997
Procedural Posture
Bankruptcy / Motion on Notice by an Examinable Person to Set Aside a Summons to Attend Examination Issued Under S 81 of the Bankruptcy Act 1966 (cth)
Outcome
The summons was not set aside; it was amended and the applicant's motion was otherwise dismissed.
Legal Topics
['summons to Attend Examination' 'examinable Person' 'trustee in Bankruptcy' "relevance to Bankrupt's Examinable Affairs" 'alleged Fishing Expedition' 'disclosure on Application for Summons']
['bankruptcy' 'insolvency' 'civil Procedure'] ['summons to Attend Examination' 'examinable Person' 'trustee in Bankruptcy' "relevance to Bankrupt's Examinable Affairs" 'alleged Fishing Expedition' 'disclosure on Application for Summons']

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Procedural Posture

Bankruptcy / Motion on Notice by an Examinable Person to Set Aside a Summons to Attend Examination Issued Under S 81 of the Bankruptcy Act 1966 (cth)

Legal Issues

  1. 1 ['Whether the summons to attend examination issued to Brian Cumins under s 81 of the Bankruptcy Act 1966 (Cth) should be set aside.' "Whether information sought about Spring Enterprises Pty Ltd's receipt of the Parkdale Victoria Cash Converters Store business or assets was relevant to the bankrupt's affairs." "Whether the applicant possessed information concerning the bankrupt's affairs." 'Whether the trustee failed to disclose relevant information when applying for the summons.' 'Whether the trustee was engaged in a fishing expedition or improper harassment.']

Ratio Decidendi

The summons should not be set aside because the transfer of the Parkdale Cash Converters business from Goldstone Investments Pty Ltd, controlled by the bankrupt, to Spring Enterprises Pty Ltd, of which the applicant was sole director, was sufficiently relevant to the bankrupt's examinable affairs and possible challenges under Part 6 of the Bankruptcy Act. The applicant's assertion that he had no further information did not require the trustee to accept his affidavit without examination, and there was no evidence that the trustee withheld relevant information, acted improperly, or pursued a mere fishing expedition.

Court Disposition

The summons was not set aside; it was amended and the applicant's motion was otherwise dismissed.

Orders

  • ['The summons issued to the applicant under section 81 of the Bankruptcy Act 1966 be amended by deleting the words "and Riverwood Park Pty Limited respectively" in the fourth line of paragraph 2, deleting sub-paragraph 2(i), and amending the word "businesses", wherever it appears, to read "business".' 'The summons...