Csidei; ex parte Andrew [1979] FCA 160

Csidei; ex parte Andrew [1979] FCA 160

The power to issue a summons for examination under s. 81 Bankruptcy Act 1966 is discretionary and not compulsory. No rigid or inflexible rule applies; the circumstances must be considered as a whole. In the present case, the material before the registrar did not justify the issuing of the summons.

Parties
Liquidator: Mr. O'Brien; Liquidator: Liquidator of Half Moon Bay Pty. Limited; Trustee: Trustee of Bankrupt's Estate; Advocate for Trustee: Mr. Urquhart
Jurisdiction
Australia
Judgment Date
14 December 1979
Procedural Posture
Bankruptcy / Application to Set Aside Summons Issued for Attendance/examination
Outcome
Summonses set aside; each party to bear own costs; no order as to costs.
Legal Topics
Exercise of Power to Summon for Examination, Discretion Under S. 81 Bankruptcy Act 1966
Bankruptcy Insolvency Exercise of Power to Summon for Examination Discretion Under S. 81 Bankruptcy Act 1966

Case Brief

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Parties

Mr. O'Brien

Liquidator

Liquidator of Half Moon Bay Pty. Limited

Liquidator

Trustee of Bankrupt's Estate

Trustee

Mr. Urquhart

Advocate for Trustee

Procedural Posture

Bankruptcy / Application to Set Aside Summons Issued for Attendance/examination

Legal Issues

  1. 1 Whether the court or registrar has discretion to issue a summons for attendance/examination under s. 81 Bankruptcy Act 1966
  2. 2 Whether the summons should have been issued in the circumstances

Ratio Decidendi

The power to issue a summons for examination under s. 81 Bankruptcy Act 1966 is discretionary and not compulsory. No rigid or inflexible rule applies; the circumstances must be considered as a whole. In the present case, the material before the registrar did not justify the issuing of the summons.

Court Disposition

Summonses set aside; each party to bear own costs; no order as to costs.

Orders

  • Summonses set aside
  • Each party to bear own costs