JUDGMENT No. 581-2 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND No. £.127 of 1987 ed R.J. KADEN & L.M. KADEN Applicants »Oo THE OFFICIAL TRUSTEE IN BANKRUPTCY Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. This 1S an application brought on behalf of a bankrupt and his wife, who have been summonsed to give evidence under s.81l of the Bankruptcy Act 1966, for an order that the summonses be set aside, and alternatively seeking adjournment of the summonses. There 1S also an application that access be granted to the original application, and supporting material, for the issue of the summons under s.81 in respect of the bankrupt's wife, Mrs. Lynette Mary Kaden. As to that matter, there 1S no opposition to a grant of access, and I do not think 1t 1S necessary to say anything more about it. LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND No. E.127 of 1987 we R.J. KADEN & L.M. KADEN Applicants THE OFFICIAL TRUSTEE IN BANKRUPTCY Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. This is an application brought on behalf of a bankrupt and his wife, who have been summonsed to give evidence under s.81 of the Bankruptcy Act 1966, for an order that the summonses be set aside, and alternatively seeking adjournment of the summonses. There 1s also an application that access be granted to the original application, and supporting material, for the issue of the summons under s.81 1n respect of the bankrupt's wife, Mrs. Lynette Mary Kaden. As to that matter, there 1s no opposition to a grant of access, and I do not think it is necessary to say anything more about it. The application has been brought at extremely short notice, and a question was raised on behalf of the Official Trustee as to whether it ought not to be adjourned to enable him to put on evidence. However, I have reached a clear conclusion on the material presented very fully and fairly to the Court on behalf of the applicants, and I do not think that it is appropriate that I do other than deal with the matter on the evidence that they have presented. The matter has to be considered against the background of the fact that proceedings have been begun by Mrs. Kaden in the Supreme Court against the Official Trustee in Bankruptcy. In those proceedings, 1t is alleged that, several years prior to the bankruptcy, there was an agreement to transfer the bankrupt's half interest in the matrimonial home at a price in accordance with a valuation which had been obtained, and, one week later, a deed was executed by the bankrupt forgiving the contract price. The application 1s based on the proposition that the examinations should not go forward whilst those proceedings are pending - and it has been suggested that they might come on for hearing within $1x months, though they have only recently been set down. Reference was made to a number of cases, both in the bankruptcy jurisdiction and in relation to the liquidation of companies, and 1t was accepted that similar principles apply in both types of matter. In particular, I was referred to Re Hugh J. Roberts Pty. Ltd. (In Liq.) and the Companies Act (1970) 91 W.N. (N.S.W.) 537, a decision of Mr. Justice Street, as he then 3. Pa was, and Re John Arnold's Surf Shop Pty. Ltd. (In Lig.) (1979) 4 A.C.L.R. 663, a decision of Mr. Justice Cox. Mr. Justice Cox took the same view of the law as had been taken by Mr. Justice Street. It 18 not suggested that those cases were wrongly decided, but it is pointed out that I have a discretion in the matter, to be exercised in all of the circumstances, and 1t 1s said that the decisions are distinguishable. What 1s particularly relied on, in order to distinguish them, 1s evidence that information has already been provided on behalf of the persons proposed to be examined, and affidavits made by them have been filed 1n the Supreme Court proceedings. It 1s said that the Official Trustee has been fully informed, and furthermore that, with the benefit of that information, he has already made up his mind to resist the claim made in the Supreme Court proceedings. Perusal of the affidavits relied on leaves me feeling that there are questions which could reasonably be asked before 1t could, in fact, be concluded that the Official Trustee has been fully informed. I think I should apply the law as stated in the cases referred to, and I am not' persuaded that' the application should succeed. I do not see any basis' for concluding in this case that the examination would be other than a proper exercise of the powers of the Official Trustee in the discharge of his duties. I am positively of the view that the examinations should proceed. Accordingly, I dismiss' the application, save as regards the matter of the grant of access, and that 1s agreed to. I think, in all the circumstances, it 1s true that that matter has not had any impact on the costs, and I 4. *° think it is appropriate that I dismiss the application with costs, including the reserved costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Cla Aart Associate Dated: 23 September, 1987.