OD OTT ETT RT NT EE ITT Bankruptcy = to give evide 1966 - trus company appointed having knowledges only through ec ~ bO Zssue to assist the tru - whether in the ci the court or the bf %: it fe) z ro should exercise power tes issue summonses avtendence vwndaer coupuaisery RE: EX PARTE: LOCKHART J. SYDNEY, 7% DECEMBER ~s ~i SG A to atten the bank The sum to John vidence " No ore \. oF the do herore rupt cr a oan ans WALL ican hoeflove Pp Gs toa Cc 2s dated pesistrar OMbries the in bankruptcy. akruptcy Act x D bea ee 1Q = ron Cu ce) ct o =~ evid of tras QQ a PPh nee, hee ro tne connectior produce certain documents in his cusrod Hr. O'Brien (£9 whom I shall yeeple. So far as relevant, grounds for the issue of the as being that enquiries of Cairns in parcel of Liat the lands owned by Half Moon Bay Phy. Limited culminating in bankrupt gr believed the it appeared that the company nad not opaid the whole of a ot oF A further aps o ay BD fay a i application out a & "Prom informe it would a Dollar the : subj subs the $100,066 BX Mm ascert reaist: on ton to rhe GOUurL. For @istribuhion. any NAA that to is foun the kind to powar conferr raordinary trali govern the exami: ensequences for fatling to attend, or to court or the registrar Lous nfair se of thi bv Con Vtg is by Connoliy J, of the Supreme Court = Supreme aeke answer. Med é ¥ é Meg i j 5] garry J. rejected the '| ane seid oa ae S330 € wy abt court's Way ~12- course is best 'suited to discover the relevant facts without being oppressive, vexarious or unfair. In .order t9 an this, the court must, I think, Look at the facts of the case as a whole, without yielding to preconceptions; and in doing this, the court should give all proper weight to tne views of the liquidator without, of course, abandoning the proper exercise of its discretion, or treating the liguidator's views as being in any way decisive of the matter. The prior submission of written questions will sometimes aid and speed the ascertainment of the relevant facts; but sometimes it may hamper or delay the process, There May be a marked difference between the information obtained from unsworn written answers which may have been drafted by Jawyers and that obtained from viva voce answers on oath, In all tne circumstances of this case, in tha exercise of my discretion, I hold that there ought to be an oral examination without any prior submission of written questions being made requisite. JI would have reached the same conclusion even if (contrary to my opinion) there were any rule, wi H j ether of law or o£ practice, th prima facie there should be no oral examination unless written questions had first been submitted." In my opinicn these observations of his LOrGas are applicable generally to the exercise by the court or registrar of the power conferred by s. 81 of persons to attend for examination. the exercise of this power, No rigid or inflexible rules can be laid down as to enable the court or the registrar to decide whether it bie Proper material must be adduc Leo rd oh re Tas courk the cruskeoe roy power belongs to the court or the registrar, not the trustee. I do not suggest that the court require voluminous material or elabore placed before ik by the tr TeSlions » trustec difficult enough Sone cimes written or onoged ex way such proceéure has proved inadequate or unsuccessful. At other times not. One 'c: should first be submitted py' tig trustees .s8 where of being wound up. fe ee ce] a) ui of govern: a) produced in practice, thus far, a dichotomy of jurisdictio in relation to insolvencies, the Sté e winding up of cowpanies ¢ over bankruptcy ridators of ce court in compulsory windings us and lignidators und The + Jessell M. R. fe) £ pankruptcy of the Uniform Ce: bankrupteyv" per. Me: 2) (cupra) bankruptcy are and 250 of the undameatal rules of al power now ephios | un exercised in Australia Oy Bankruptey Jur The Federal deral Cou jurisdiction under nkruptcy j is inve 27. tre Federal Court of but nas been left with im res: the court and part heard on |] Februery 1°77. and of the worthern T wy canhiue BS Yhe Supreme Courts prack ices pe istration of insolvency, whether St or Federal or both. The need foi to assist the other is obvious. In my opinion, between persons whose task it is of a company informetion about the company's affairs that may assiat the trustees of a bankrupt's estate the trustee snould obtain aii the information he reasonably can by oral or written comaunicetion from the Liquidator before the incoisitorial powers of s. @l. seme when the assistance cf trustecs in bankruptcy is before resorting to s. 249 of There to ming are where a liquidator has a personal pecunis rd interest in the winding up or where he has unreasonably fused or In the present case, the summonses ought nok ko was nothing before tne registrer to suggest that the liquidator was personally interested in the winding up of the company or had failed to assist the trustee, Indeed the liquidator has expressly disavowed any dise cS registrar at requires MOE a ro) Pain a the wah the smonses were issued by the of the trusses, they have been shtermined Tt wos argued by Mr. Urquhart, whe appeared for the webb, Fullagar, ac uo ntention ascer ta ined you begin the power conferred by s. @1 is mandatory in once the court is satisfied that the proposed LiRin one of the categories sp-cified in s. 81, strerc is recuired to issue a summons of fo give documents or both, This argunea: Kitto and Taylor JJ. said at po. 505 -~1lb- ether ot obligations confer. (in obligati Judge, o power is given by use it upon any 3 in any particular aliunde, a4 in solved from particular provi ih ws LONG, OF justified power or on whon case. cases and decide where @ power officer for the . the benefit specifically pointed Ou to whom a definition is suppi Legislature of the eonditions they are entitled exe reise that exerci sed, and the wilh to be exercised (1880) LR. 5 Some support for the argument tha s. 61 in a compulsory sense may be found by the section to define the persons to « sion, solved » history of s. 81, and of the equivalent sections of ihe } ~19- words "a person knoav any property of the to the bansrupt or evaluation has been carried out to arrive at the conclusion that the person answers the given description, . dence, so the argument goes, once he answers that description, the summons must issue, Likewise, the summons must issue if the po eon is either the bankrupt or the spouse of the In my opinion, the argument is fallacious. 'Tee Uniform Comoanies Acts, beth here and in the Unihed Kins the many authorities which either expressly assert or assure the existence of a discretion in the court te issus the summons (in addition to the authorities already cited see Ex 17 Ch.D 512, and re HH. a. Price ("o. 4 (1948) 14 A.B.C. 142: the very purpose of the section itself and its subject matter; the context in which the word "may" appears in s. 8] itself; and the construction = aa of the Act as a 9 lam (see for instance s. 69 and th fe) Strange "Ss oe Q consequence that would follow if the argument is correct), lead me to conclude that the word "may" is used in its prima facie facultative sense. Tt was not sought on behalf of the that ¢ is used in a faculke Ae is the bankrupt or the spoune sf ow Fs & person to be banxrupt (s. 81 (1) (a) ), the person falls within the descr Nor do I think such an argument would be tenable. Some reliance was placed by the trustee on oan ' unreported decision of Matthews J. of the Supreme Covrt of and delivered his Honour held that @ summons must isy 2 attendence of the spouse of the bankrupt once it veer established that she answered thet descript His feacur does not appear to have been referred to the history o ES section and the decisions on the equivalent sections in.ctner bankruptcy Acts and Acts relating to comcanies. i respectfully reach a different conclusion. There was some argument as to the nature and extent of an plication to the court under s.14 (5). It BS submitted on behalf cf the trustee that the court is limits to the evidence before the registrar. I need not Getsarzings this question as I am satisfied that on the material before the registrar alone, the summons should not have issued. Although the lecus standi of the liguidatear ts . the court for the orders. sought «as not something about it as there has been seme caonflicy 12 Ch. D, 77, Comnanies Act had ne right of appeal against the order directing bho attend for examination. Thesiger L. J. preferred on the point. In Bowen Lid. said at po. G3:- served -- complain thé hard ugon him;...it poink ought to be le! ' at present advise expressions of ANG contra % gQ too Far, ed to be to me Gecistior Div. 159." In my opinion, the dec is contrary to In Re a debtor (fo. 3 9F toot w si (1517) 1 KB. 588 Horridge J. sought te refusal of his application. to examination discharged. Re Stirling Henry Ltd. ( N.S.W.L.&. 497, rom] unscathed". In my copini the court for an order ion and to complain that oppressive or otherwise ought to be . comes se ah tpni . a CiaS2 On wnicn sone the examinee set dg. and Shearinan J., compr the wiiness For these reasons, the summonses should be As to costs, the case has seen treated parties as a test case so that some light may be the important question of practice involved, in of authority directly in point. should bear his own costs. I order that the acts of In my opinion, I make cored no order as grtghenyy E LOCKE bankru £ to costs. pk oor