Terry, W.A. v. Prentice, M.W. & Anor [1994] FCA 937

Terry, W.A. v. Prentice, M.W. & Anor [1994] FCA 937

The notice was valid in so far as it required Mrs Terry to attend an examination to provide information relating to the income and assets of the bankrupt, but invalid in so far as it required her to produce the books and accounting records of Aba-Fel Pty Limited, as trustee for The Terry Family Trust, due to excessive breadth and absence of restriction to documents in her possession or relevance to the bankrupt estate; these requirements are severable.

Parties
Applicant: Joyce Terry; Bankrupt: Wallace Allan Terry; First Respondent: Maxwell William Prentice; Second Respondent: The Official Receiver
Jurisdiction
Australia
Judgment Date
02 December 1994
Procedural Posture
Application to Set Aside Notice Under Bankruptcy Act / Judgment
Outcome
Notice partially set aside; applicant to bring in short minutes for setting aside notice as it relates to production of books and accounting records.
Legal Topics
Trustee Powers, Notice to Produce Documents, Obligation to Attend Examination, Validity of Notice, Production of Company Documents, Improper Purpose, Severability of Requirements
Bankruptcy Trustee Powers Notice to Produce Documents Obligation to Attend Examination Validity of Notice Production of Company Documents Improper Purpose Severability of Requirements

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Parties

Joyce Terry

Applicant

Wallace Allan Terry

Bankrupt

Maxwell William Prentice

First Respondent

The Official Receiver

Second Respondent

Procedural Posture

Application to Set Aside Notice Under Bankruptcy Act / Judgment

Legal Issues

  1. 1 Whether a notice under s 77C of the Bankruptcy Act can require a person to attend before the Official Receiver for examination
  2. 2 Whether a notice addressed to a director of a company to produce company documents is valid
  3. 3 Whether a notice requiring production of all books and accounting records of a company as trustee for a trust is too broad

Ratio Decidendi

The notice was valid in so far as it required Mrs Terry to attend an examination to provide information relating to the income and assets of the bankrupt, but invalid in so far as it required her to produce the books and accounting records of Aba-Fel Pty Limited, as trustee for The Terry Family Trust, due to excessive breadth and absence of restriction to documents in her possession or relevance to the bankrupt estate; these requirements are severable.

Court Disposition

Notice partially set aside; applicant to bring in short minutes for setting aside notice as it relates to production of books and accounting records.

Orders

  • Notice dated 3 November 1994 from Robert John Cruickshanks, Acting Official Receiver, is set aside in so far as it requires production of the books and accounting records of Aba-Fel Pty Limited, as trustee for The Terry Family Trust.
  • The stay of that notice is terminated otherwise.