Bride & Anor, Re E.J.; Stewart,G.S. & Anor, Ex Parte [1988] FCA 395

Bride & Anor, Re E.J.; Stewart,G.S. & Anor, Ex Parte [1988] FCA 395

The application to set aside the summons was dismissed because the trustee had reasonable grounds for seeking an oral examination under s.81, the examination was not for an improper or collateral purpose, some dispute existed about the applicant's involvement in the bankrupts' affairs supporting the need for formal inquiry, and no substantial prejudice to the applicant was shown despite the delay.

Parties
Applicant: Bryan Guthrie Stewart; Respondent: Bernard Putnin; Bankrupt: Edward James Bride; Bankrupt: Wendy Margaret Bride
Jurisdiction
Australia
Judgment Date
26 July 1988
Procedural Posture
Bankruptcy Application / Application to Set Aside Compulsory Examination Summons Under S.81 of the Bankruptcy Act 1966
Outcome
Application dismissed
Legal Topics
Compulsory Examination, Trustee Powers, Examination of Third Parties, Bankruptcy Procedure
Bankruptcy Compulsory Examination Trustee Powers Examination of Third Parties Bankruptcy Procedure

Case Brief

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Parties

Bryan Guthrie Stewart

Applicant

Bernard Putnin

Respondent

Edward James Bride

Bankrupt

Wendy Margaret Bride

Bankrupt

Procedural Posture

Bankruptcy Application / Application to Set Aside Compulsory Examination Summons Under S.81 of the Bankruptcy Act 1966

Legal Issues

  1. 1 Whether the summons for compulsory examination under s.81 of the Bankruptcy Act 1966 should be set aside in respect of an accountant alleged to have been involved in the bankrupts' affairs.
  2. 2 Whether there was delay, collateral purpose, or that the examination would be oppressive or vexatious.

Ratio Decidendi

The application to set aside the summons was dismissed because the trustee had reasonable grounds for seeking an oral examination under s.81, the examination was not for an improper or collateral purpose, some dispute existed about the applicant's involvement in the bankrupts' affairs supporting the need for formal inquiry, and no substantial prejudice to the applicant was shown despite the delay.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • The applicant is to pay the respondent's costs of the application.