Re: Miller; Ex Parte: Edwards v Official Trustee in Bankruptcy [1995] FCA 1151

Re: Miller; Ex Parte: Edwards v Official Trustee in Bankruptcy [1995] FCA 1151

In the circumstances of this case, compliance with rule 129 could be justifiably waived to avoid frustrating the purpose of the examination, since requiring informal requests for information from Ms Edwards in advance could defeat the compulsory process; there is no basis to find the summons oppressive or abusive,...

Source-derived case information.

Parties
Applicant: Felicity May Edwards; Respondent: The Official Trustee in Bankruptcy; Bankrupt: Gary Miller
Jurisdiction
Australia
Judgment Date
06 December 1995
Procedural Posture
Bankruptcy / Application to Review Deputy Registrar's Decision Refusing to Discharge or Strike Out a Section 81(1) Bankruptcy Act Summons
Outcome
Application to strike out the summons dismissed; compliance with relevant portions of rule 129 dispensed with; costs awarded against Ms Edwards; summons adjourned to date to be fixed by the Registrar.
Legal Topics
Section 81 Examination, Compulsory Examination, Procedural Requirements Under Rule 129, Waiver of Procedural Compliance
Bankruptcy Section 81 Examination Compulsory Examination Procedural Requirements Under Rule 129 Waiver of Procedural Compliance

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Parties

Felicity May Edwards

Applicant

The Official Trustee in Bankruptcy

Respondent

Gary Miller

Bankrupt

Procedural Posture

Bankruptcy / Application to Review Deputy Registrar's Decision Refusing to Discharge or Strike Out a Section 81(1) Bankruptcy Act Summons

Legal Issues

  1. 1 Whether the failure to comply with rule 129 in seeking a section 81 summons should be waived
  2. 2 Whether the section 81 summons to Ms Edwards is oppressive/vexatious or an abuse of process

Ratio Decidendi

In the circumstances of this case, compliance with rule 129 could be justifiably waived to avoid frustrating the purpose of the examination, since requiring informal requests for information from Ms Edwards in advance could defeat the compulsory process; there is no basis to find the summons oppressive or abusive, nor any clear conflict of interest or mala fides by the trustee.

Court Disposition

Application to strike out the summons dismissed; compliance with relevant portions of rule 129 dispensed with; costs awarded against Ms Edwards; summons adjourned to date to be fixed by the Registrar.

Orders

  • Such provisions of rule 129 as would prevent the filed affidavit in support from grounding issue of the summons are waived.
  • The application for striking out the summons is dismissed.