Rizkallah (Re)

Rizkallah (Re)

Sufficient cause existed to order an examination under s.163(2) because the transfer of the sole share to the bankrupt's wife occurred immediately before commencement of litigation against the applicants and within the five-year period prior to the bankruptcy, creating a reasonable basis to inquire whether the...

Source-derived case information.

Citation
2005 NSSC 345
Parties
Applicant/creditor: Mark Kent; Applicant/creditor: Vicky Kent; Applicant (company): Elshemga Enterprise Inc.; Bankrupt: Rodolphe Rene Rizkallah
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
15 December 2005
Procedural Posture
Bankruptcy and Insolvency / Application for Examination Under S.163(2) of the Bankruptcy and Insolvency Act
Outcome
Order for examination under s.163(2) granted.
Legal Topics
Examination Under Oath (s.163(2)), Fraudulent Conveyance/voidable Transactions (s.91(2)), Proof of Claim and Trustee Disallowance, Scope and Limits of Court Ordered Examinations
Source Language
english
Bankruptcy Insolvency Civil Procedure Property Law Examination Under Oath (s.163(2)) Fraudulent Conveyance/voidable Transactions (s.91(2)) Proof of Claim and Trustee Disallowance Scope and Limits of Court Ordered Examinations

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Parties

Mark Kent

Applicant/creditor

Vicky Kent

Applicant/creditor

Elshemga Enterprise Inc.

Applicant (company)

Rodolphe Rene Rizkallah

Bankrupt

Procedural Posture

Bankruptcy and Insolvency / Application for Examination Under S.163(2) of the Bankruptcy and Insolvency Act

Legal Issues

  1. 1 Whether applicants have standing to seek examination under s.163(2)
  2. 2 Whether sufficient cause exists to order examination
  3. 3 Whether pleadings and a bare belief suffice as grounds for examination

Ratio Decidendi

Sufficient cause existed to order an examination under s.163(2) because the transfer of the sole share to the bankrupt's wife occurred immediately before commencement of litigation against the applicants and within the five-year period prior to the bankruptcy, creating a reasonable basis to inquire whether the transfer was a settlement voidable under s.91(2); however, pleadings and unsupported belief are insufficient, and the examination is to be limited to matters related to administration of the estate and potential benefit to creditors.

Court Disposition

Order for examination under s.163(2) granted.

Orders

  • Order that the bankrupt, Rodolphe Rene Rizkallah, be examined under oath pursuant to s.163(2) of the Bankruptcy and Insolvency Act
  • Examination to be limited to matters related to administration of the estate and matters likely to result in benefit to the creditors generally; procedures for the examination to be fixed by the court if parties cannot agree