Sherman v Lamb (No 2) [2024] FCA 689

Federal Court of Australia

Sherman v Lamb (No 2) [2024] FCA 689 File number: QUD 209 of 2022

Judgment of: LOGAN J

Date of judgment: 21 June 2024

Catchwords: BANKRUPTCY AND INSOLVENCY – where the trustee of the bankrupt estate applies for orders under s 30 of the Bankruptcy Act 1966 (Cth) (the Act) for a production order akin to the trustee's power under s 77A of the Act – where the orders are directed at an incorporated legal practice (ILP) that previously advised the bankrupt in relation to defamation proceedings – where the ILP has outstanding legal fees and did not actively oppose the application – where the bankruptcy trustee requires the documents held by the ILP for the purposes of a costs assessment process – where the bankrupt retains a right of legal professional privilege in some or all of the documents sought – whether the Court should exercise its discretion under s 30 of the Act and make the orders sought – application allowed BANKRUPTCY AND INSOLVENCY – where there is a lacuna in the definitions of associated company (s 5B) and associated natural person (s 5C) in the Act – where power in s 77A of the Act is conditioned on the person subject to the s 77A request holding "books of an associated entity of the bankrupt" – whether apparent legislative drafting error provides grounds for exercising discretion in s 30 of the Act to make orders sought

Legislation: Bankruptcy Act 1966 (Cth) ss 5B, 5C, 5D, 5E, 30, 77A Uniform Civil Procedure Rules (Qld) r 692

Cases cited: Bennett & Co v CLC Corporation (2001) 23 WAR 344 Karageozis v Sherman [2023] QCA 258 Karageozis v Sherman (No 2) [2024] QCA 12 Lamb v Sherman [2023] FCAFC 85 Re Simersall; Blackwell v Bray (1992) 35 FCR 584 Re Steele; Ex parte Official Trustee of Bankruptcy v Clayton Utz (1994) 48 FCR 236 Sherman v Lamb [2022] QDC 215 Sherman v Lamb [2023] FCA 168