Mokhtar v Piscopo [2024] FCA 493

Federal Court of Australia

Mokhtar v Piscopo [2024] FCA 493 File number(s): NSD 611 of 2022

Judgment of: PERRY J

Date of judgment: 13 May 2024

Catchwords: BANKRUPTCY – application by a bankrupt for order removing trustee pursuant to s 90-15 of the Insolvency Practice Schedule (Bankruptcy), Schedule 2 of the Bankruptcy Act 1966 (Cth) – consideration of principles governing removal of a trustee in bankruptcy – whether relationship between bankrupt and trustee has irretrievably broken down – whether the trustee has lost the objectivity required of a trustee in bankruptcy– where the bankrupt failed in multiple respects to cooperate with the trustee–where trustee filed 17 notices of objection to discharge to bankruptcy in 10 month period – whether proper basis to infer that the notices of objection were filed for an improper purpose - where trustee's lack of objectivity has exacerbated the breakdown – where "red-flags" evident such that the necessity and prudence of undertaking investigations and protecting the assets of the estate in bankruptcy should have been evident from the commencement of the bankruptcy –whether replacement of the trustee is in the best interests of the bankrupt estate –where outcome is not a vindication of the bankrupt's conduct - removal of trustee ordered EVIDENCE – consideration of the impact of the passage of time on the quality of evidence – undesirability of evidence of conversations being given in direct speech in affidavits despite the passage of time and the witness not recalling the precise words used in the conversations – whether there was a failure to comply with the rule in Browne v Dunn with respect to the failure to cross-examine the trustee on certain topics