Ambrose (Trustee), in the matter of Little (Bankrupt) v Little [2002] FCA 877

FEDERAL COURT OF AUSTRALIA

Ambrose (Trustee), in the matter of Little (Bankrupt) v Little [2002] FCA 877 COLIN LOUIS AMBROSE (TRUSTEE), IN THE MATTER OF PAULINE ANNE LITTLE (BANKRUPT) v PAULINE ANNE LITTLE S 7008 of 2002 von DOUSSA J ADELAIDE 3 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 7008 OF 2002

BETWEEN: COLIN LOUIS AMBROSE (TRUSTEE), IN THE MATTER OF PAULINE ANNE LITTLE (BANKRUPT)

APPLICANT

AND PAULINE ANNE LITTLE

RESPONDENT JUDGE: von DOUSSA J

DATE OF ORDER: 3 JULY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application in par 1 of the notice of motion to set aside the summons dated 14 June 2002 is dismissed.

2. Direct the bankrupt, Patricia Anne Little, to file affidavit material in admissible form identifying the conduct of the trustee which it is alleged constitutes ground for an inquiry under s 179 of the Bankruptcy Act 1966 within 21 days.

3. Direct the trustee, if so advised, to file affidavit material in admissible form in response within 21 days of receiving the affidavits of the bankrupt.

4. Adjourn consideration of the s 179 application to 2.15 pm on 13 September 2002.

5. Otherwise adjourn generally the notice of motion to a date to be fixed with liberty to either party to apply on short notice.

6. Costs of today reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 7008 OF 2002

BETWEEN: COLIN LOUIS AMBROSE (TRUSTEE), IN THE MATTER OF PAULINE ANNE LITTLE (BANKRUPT)

APPLICANT

AND PAULINE ANNE LITTLE

RESPONDENT

JUDGE: von DOUSSA J

DATE: 3 JULY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 A notice of motion issued by the respondent Pauline Anne Little (the "bankrupt") has been specially returned this morning for hearing in advance of the return of a summons for the bankrupt's examination before the Registrar under s 81 of the Bankruptcy Act 1966 (Cth). That examination is listed for 10 am. 2 The notice of motion seeks a number of orders which fall into the following categories: (a) orders that the summons requiring the bankrupt to attend for examination this morning and to produce documents be set aside; (b) an order that there be an inquiry under s 179 of the Bankruptcy Act into the conduct of Colin Louis Ambrose (the trustee) as trustee of the bankrupt's estate; (c) an order pursuant to s 178 of the Bankruptcy Act that the applicant remove a caveat over certain property which was formerly the matrimonial property of the bankrupt and one Gregory Martin Little, and (d) orders restraining the trustee from further acting as trustee until the s 179 application has been dealt with. 3 The papers before the court indicate that the trustee wishes to investigate a transfer of the former matrimonial property from the bankrupt to Gregory Martin Little, and to that end the trustee has already lodged a caveat over the title of the property. The caveatable interest is based on a claim under ss 120 and 121 of the Bankruptcy Act, to have the transfer of the property declared void. 4 The central ground upon which it is contended that the summons should be set aside relies on s 123 (6) of the Bankruptcy Act, which provides: "Subject to section 121, nothing in this Act invalidates, in any case where a debtor becomes a bankrupt, a conveyance, transfer, charge, disposition, assignment, payment or obligation executed, made or incurred by the debtor before the day on which the debtor became a bankrupt under or in pursuance of a maintenance agreement or maintenance order."