Re James Louis Florance (A Discharged Bankrupt) Ex Parte: Peter Nelson Hardiman v William Edward Andrew (Trustee of the Estate of James Louis Florance) [1992] FCA 58 (24 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: JAMES LOUIS FLORANCE (a Discharged Bankrupt)
Ex parte: PETER NELSON HARDIMAN
And: WILLIAM EDWARD ANDREW (trustee of the Estate of James Louis Florance)
No. W 95 of 1980
FED No. 50
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
Neaves J.(1)

CATCHWORDS

Bankruptcy - Summons for the examination of a person supposed to be able to give information concerning the affairs of a discharged bankrupt - Application to set aside summons - Date of bankruptcy prior to date of commencement of amendments to relevant legislation - Amendments not to apply to pre-existing bankruptcies - Absence of transitional provisions - Whether pre-amendment provisions applicable - Whether material in application sufficient to warrant issue of summons - Whether summons too wide or oppressive.

Bankruptcy Act 1966 (Cth), s.81

Bankruptcy Amendment Act 1987 (Cth), ss.38, 106(1)

Bankruptcy Rules (Cth), s.129, Form 49

Bankruptcy Rules (Amendment) Rules, Statutory Rules 1989 Nos 182, 183, 245 and 376

Karounos v Official Trustee (1988) 19 FCR 330

Rothwells Ltd (Prov Liq. Apptd) (1989) 15 ACLR 168

HEARING

SYDNEY
24:2:1992

Counsel for the applicant : Mr J. Johnson

Solicitors for the applicant : Sally Nash and Co.

Counsel for the trustee : Mr D. Davies

Solicitors for the trustee : Holman Webb

ORDER

The summons issued under s.81(1) of the Bankruptcy Act 1991 directed to Peter Nelson Hardiman and dated 19 July 1991 be amended -
(a) by deleting the words "the property, trade dealings

and affairs of the bankrupt, James Louis Florance, and
in particular";
(b) by deleting the word "including" where it appears
immediately preceding the specification of the
documents required to be produced.

Otherwise the application be dismissed.

There be no order as to costs.

NOTE: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.

DECISION

This is an application pursuant to s.14(5) of the Bankruptcy Act 1966 (Cth) ("the Act") by Peter Nelson Hardiman ("the applicant") to review the decision of a Deputy Registrar in Bankruptcy made on or about 19 July 1991 that a summons under s.81(1) of the Act issue for the examination of the applicant "in connection with the property, trade dealings and affairs of the bankrupt, James Louis Florance". The applicant seeks an order that the summons be set aside.

2. Mr Florance became a bankrupt upon the making of a sequestration order against his estate on 18 February 1980. William Edward Andrew ("the trustee") is, and has since 29 April 1980 been, the trustee of the bankrupt's estate. On 15 February 1985 an order was made that the bankrupt not be discharged from bankruptcy pursuant to s.149 of the Act. On 17 November 1987 an order that he be discharged from bankruptcy was made, the operation of that order being suspended up to and including 18 February 1988.

3. Immediately prior to the date of commencement of the amendments made to s.81 of the Act by s.38(1) of the Bankruptcy Amendment Act 1987 (Cth), viz. 31 July 1989, s.81, so far as material for present purposes, provided:

"81. (1) The Court or the Registrar may, on the
application of a creditor who has proved his debt and on such
terms as to costs as the Court or the Registrar thinks fit to
impose, or on the application of the Official Receiver or the
trustee, at any time summon -
(a) the bankrupt or the spouse of the bankrupt; or
(b) a person who is known or suspected to have in his
possession any of the property of the bankrupt, or is
supposed to be indebted to the bankrupt or to be able
to give information concerning the bankrupt or his
trade dealings, property or affairs,
to attend, on a date and at a time and place fixed in the summons,
before the Court or the Registrar or, if the Court or the
Registrar thinks fit, before a magistrate, to give evidence
concerning, and produce any books (whether or not in existence at
the time the bankrupt became a bankrupt) in his custody or power
relating to, the bankrupt or his trade dealings, property or
affairs.
....
(10) The Court, the Registrar or the magistrate may put to
a person being examined under this section, or allow to be put to
a person being examined under this section, such questions
concerning the bankrupt or his trade dealings, property or
affairs, as the Court, the Registrar or the magistrate, as the
case may be, thinks proper.
(11) A person being examined under this section shall
answer all questions that the Court, the Registrar or the
magistrate puts or allows to be put to him.
....
(15) The Court, the Registrar or the magistrate, as the
case may be, may cause such notes of the examination of a person
under this section to be taken down in writing as the Court, the
Registrar or the magistrate, as the case may be, thinks proper,
and the person examined shall sign the notes.
....
(17) Notes taken down and signed by a person in pursuance
of sub-section (15), and the transcript of the evidence given at
the examination of a person under this section (being a transcript
certified, or certified, signed and sealed, in pursuance of
section 255) -
(a) may be used in evidence in any proceedings under this
Act in which the person is a party; and
(b) shall be open to inspection by the person, the
bankrupt, the trustee or a person who states in
writing that he is a creditor of the bankrupt without
fee and by any other person on payment of the
prescribed fee."

4. Section 38(1) of the Bankruptcy Amendment Act 1987 omitted sub-s.(1) of s.81 and substituted a number of sub-sections. Section 38(2) provided that the amendments made by sub-s.(1) were to apply as provided in s.106(1). That section provided that the amendments made by, inter alia, sub-s.38(1) were to apply in relation to a bankrupt in respect of a bankruptcy if, and only if, the date of the bankruptcy occurred on or after the day of commencement of that sub-section. It appears to have been assumed, perhaps relying on ss.8 and 8B of the Acts Interpretation Act 1901, that, notwithstanding the absence of an express provision to that effect (cf s.15(2) of the Law and Justice Legislation Amendment Act 1990 (Cth)), s.81 in its pre-amended form would continue to apply in relation to a bankrupt in respect of his bankruptcy if the date of the bankruptcy occurred prior to 31 July 1989.

5. Prior to the coming into operation on 31 July 1989 of the Bankruptcy Rules (Amendment) Rules, being Statutory Rules 1989 No.182 (see the Acts Interpretation Act 1901 (Cth), s.4 as it stood prior to the amendments effected by s.49 of the Law and Justice Legislation Amendment Act 1990), r.129 of the Bankruptcy Rules provided:

"129. (1) An application to the Court or to the Registrar
for a summons under sub-section 50(2) or 81(1) of the Act shall
set out the grounds on which the application is made and, except
where the application is made by the trustee of the bankrupt to
whom the application relates, shall be accompanied by an affidavit
setting out the facts relied on by the applicant in support of his
application.
(2) A summons under sub-section 50(2) or 81(1) of the Act
shall be in accordance with Form 49.
(3) The Registrar shall -
(a) in the case of a summons issued in accordance
with an order of the Federal Court of Bankruptcy
- sign and seal the summons;
(b) in the case of a summons issued in the exercise
of a jurisdiction in bankruptcy by a court
having that jurisdiction - cause the summons to
be signed and sealed on behalf of that court; and
(c) in the case of a summons issued by the Registrar
- sign and stamp the summons."
Form 49 was then in the following terms:
"SUMMONS UNDER SECTION 81 OF THE BANKRUPTCY ACT
(Title)
To: (full name and address of person summoned)
In pursuance of the power conferred on the Court (or
the Registrar) by section 81 of the Bankruptcy Act 1966, the
Court (or the Registrar) hereby summons you to attend before
the Court (or the Registrar or a magistrate) at
on the day of , 19 ,
at the hour of o'clock in the noon to give
evidence in connexion with (give short particulars of the
matters concerning which the person is to be examined) and
to produce any of the following documents that are in your
custody or power and relate to the abovementioned bankrupt
or his trade dealings or affairs:- (or, if the summons is
directed to the bankrupt, to give evidence and to produce
any documents in your custody or power relating to yourself
or to your trade dealings, property or affairs, and, in
particular, the following documents:-
).
Dated this day of , 19
(By the Court)
*Registrar
*Strike out whichever or
is inapplicable *Registrar in Bankruptcy
NOTE Sub-section 264B of the Bankruptcy Act 1966
authorizes the issue of a warrant for the apprehension of a
person who, having been served with a summons, fails to
attend as required by the summons or fails to appear and
report himself from day to day as required by the Court, the
Registrar or Magistrate, as the case may be."

6. By r.19 of the Bankruptcy Rules (Amendment) Rules, being Statutory Rules 1989 No.182, r.129 was repealed and new rr.129 and 129A were substituted. Those rules dealt respectively with an application for a summons under s.81(1) and with a summons under that section. Rule 20 of those rules, without making any provision for the form previously prescribed to be omitted, prescribed a new Form 49. The previously prescribed form was, however, omitted by r.17(f) of the Bankruptcy Rules (Amendment) Rules, being Statutory Rules 1989 No.183 which also commenced on 31 July 1989. Form 49 was again omitted and a new form prescribed by the Bankruptcy Rules (Amendment) Rules, being Statutory Rules 1989 No.245 which came into operation on 15 September 1989. It is to be noted that, although certain of the amendments made by Statutory Rules 1989 No.182 were to apply only if the date of bankruptcy occurred on or after the day of commencement of those Statutory Rules, viz. 31 July 1989 (see r.21 of Statutory Rules 1989 No.182), no such provision was made in relation to the amendments effected by rr.19 and 20. However, r.15 of the Bankruptcy Rules (Amendment) Rules, being Statutory Rules 1989 No.376 which came into operation on 21 December 1989, provided:

"The amendments made by rule 19 of Statutory Rules 1989 No.182
apply on and after the date of commencement of these Rules only in
relation to bankruptcies that occurred on or after 31 July 1989."

7. Again, there was no express provision that r.129 and Form 49 in the form which they took immediately prior to 31 July 1989 were to continue to apply in relation to a bankrupt in respect of his bankruptcy if the date of the bankruptcy occurred prior to 31 July 1989. The assumption appears to have been made that that was the position.

8. On the hearing of the present application no argument was presented challenging the correctness of the assumptions to which I have referred, namely that the relevant legislative provisions are to be found in s.81(1) of the Act, r.129 of the Bankruptcy Rules and Form 49 in Schedule 1 to those rules in the form in which they respectively stood immediately prior to 31 July 1989, that is to say, in the form in which those provisions are set out earlier in these reasons. The requirements of those provisions which are significant for present purposes are -

(a) the requirement in s.81(1) that the person to be examined be
a person who is suspected to have in his possession any of
the property of the bankrupt or to be able to give
information concerning the bankrupt or his trade dealings,
property or affairs;
(b) the requirement in r.129(1) that an application for the
issue of a summons set out the grounds on which the
application is made; and
(c) the requirement in Form 49 that the summons give short
particulars of the matters concerning which the person is to
be examined.

9. The application made to the Deputy Registrar in Bankruptcy for the issue of the summons is dated 19 July 1991 and is signed by the trustee. It is in the following terms:

"I, WILLIAM EDWARD ANDREW, of 111 Elizabeth Street, Sydney, in the
State of New South Wales, the Trustee of the bankrupt estate of
James Louis Florance, hereby request pursuant to Section 81 of the
Bankruptcy Act 1966 that a summons in accordance with the terms
therein stated be issued by the Registrar to:
Mr PETER NELSON HARDIMAN
2/123 Sydney Road,
FAIRLIGHT 2094.
1. James Louis Florance became bankrupt on 18th February 1980.
2. Three strata title units in Foamcrest Avenue, Newport, were
owned by a company in which the bankrupt prior to his bankruptcy
had a substantial shareholding or in the alternative that company
held its assets as trustee for the bankrupt and another party.
3. In 1977, Louis John Holdings Pty. Limited transferred the
title to the aforesaid strata title units to a company known as
Civic Ice Rinks Pty. Limited.
4. Civic Ice Rinks Pty. Limited took title to the aforesaid
strata title units in trust for and at the direction of the
bankrupt and on 17th April 1980 Civic Ice Rinks Pty. Limited at
the direction of the bankrupt transferred the units to a person
shown on the transfers therefor as 'Peter Nelson'.
5. Information in my possession indicates that there is no such
person as Peter Nelson but there is a person known as Peter Nelson
Hardiman who may have acted in relation to these units in the
guise of Peter Nelson.
6. Information in my possession by way of forensic handwriting
reports indicates that the signature 'P. Nelson' appearing on
various transfers, mortgages and correspondence is not that of a
person who has consistently signed his signature to letters and
documents over a period of years.
7. I desire to examine Peter Nelson Hardiman with reference to
the ownership of the aforesaid strata titles (sic) units by the
purported Peter Nelson."

In view of the comments made by Lockhart J. in Re Abrahams; Ex parte Thomas (1985) 9 FCR 232 at p 236, I should say that, prior to the hearing of the present application, the solicitors for the trustee made a copy of the application available to the solicitors for the applicant.

10. The summons that was issued is in the following terms:

"SUMMONS UNDER SUBSECTION 81(1)
TO: PETER NELSON HARDIMAN
OF: 22/123 Sydney Road, Fairlight 2094
In pursuance of the power conferred on the Registrar by
Section 81 of the Bankruptcy Act, 1966, the Registrar hereby
summons you to attend before the Registrar at Level 18, Law
Courts Building, Corner Macquarie and King Streets, Sydney,
on Wednesday, the 11th day of September, 1991, at 10 o'clock
in the forenoon, to give evidence in connection with the
property, trade dealings and affairs of the bankrupt, James
Louis Florance, and in particular the circumstances relative
to which the said James Louis Florance, then practising as a
Solicitor, acted on and in connection with the transfer to
Peter Nelson of Lots 4, 5 and 6 in Strata Plan 9650
Foamcrest Avenue, Newport, including the mortgaging of those
properties, and to give evidence in connection with the
subsequent discharge of the mortgages thereover, the letting
of those properties in the name of the said Peter Nelson and
your involvement as letting agent for the said Peter Nelson
and there to produce any of the following documents which
are in your custody or power that relate to the
abovementioned bankrupt or his trade dealings or affairs or
are related to the aforesaid Lots 4, 5 and 6 in Strata Plan
9650 Foamcrest Avenue, Newport, including:-
books, documents and records relating to the
acquisition by Peter Nelson of Lots 4, 5 and 6 in
Strata Plan 9650 Foamcrest Avenue, Newport, the
mortgaging and discharge of mortgages given by Peter
Nelson over such properties, the letting by Peter
Nelson of such properties, including financial records
relating to the receipt and disbursement of all income
therefrom including cheque butts, bank statements and
all records relating to the account with National
Mutual Royal Bank at Penrith in the name of Peter
Hardiman and the account with Australian and New Zealand
Banking Group Limited, William Street, Sydney, in the
name of Peter Nelson into which cheques drawn by the
Lessee for the time being in payment of rental for the
aforesaid properties have been deposited."

11. Counsel for the applicant made two principal submissions. The first of these was that the summons should be set aside on the ground that "it goes to matters that are not relative to the affairs of the bankrupt". Counsel made a critical examination of the application for the issue of the summons contending that it demonstrated no sufficient nexus between the applicant and the bankrupt or his property, trade dealings or affairs.

12. It was agreed for the purposes of argument that the three strata title units in Foamcrest Avenue, Newport referred to in par.2 of the application for the issue of the summons are more particularly described as Lots 4, 5 and 6 in Strata Plan 9650 and that Peter Nelson is registered under the Real Property Act, 1900 (N.S.W.) as the proprietor thereof subject, in the case of each of Lots 4 and 5, to a registered mortgage. It was conceded by the applicant that he is, in fact, the Peter Nelson shown as the registered proprietor of those lots and the person referred to by that name in the application for the issue of the summons. It was also conceded that the company referred to in par.2 of that application is the company named in par.3 thereof, namely Louis John Holdings Pty Limited.

13. Counsel for the applicant, while agreeing that the application asserted a chain of title to the property in question from Louis John Holdings Pty Limited through Civic Ice Rinks Pty Limited to the applicant, submitted that that assertion, without more, demonstrated no connection between the applicant and the bankrupt. Further, the assertion in par.2 of the application that the bankrupt, prior to his bankruptcy, had a substantial shareholding in Louis John Holdings Pty Limited was said to carry the matter no further. The position was no different, so it was submitted, in relation to the alternative assertion in par.2 that Louis John Holdings Pty Limited held its assets as trustee for the bankrupt and another unidentified party.

14. A similar submission was made in relation to the assertions in par.4 of the application that Civic Ice Rinks Pty Limited took title to the strata title units "in trust for and at the direction of" the bankrupt and transferred those units to the applicant "at the direction of the bankrupt".

15. Counsel for the applicant also submitted that the application contained no material that would support the assertions made therein as to the bankrupt's association with the companies named or the strata title units.

16. Attention was also directed to the disparity between par.7 of the application, which identified the subject matter of the examination as "the ownership of the aforesaid strata titles (sic) units by the purported Peter Nelson", and the subject matters for the examination as set out in the summons. It was submitted that the summons "issued on a totally different basis than is set out in the application" and that there was no material before the Deputy Registrar, or before the Court, that would justify the issue of a summons in such broad terms as those contained in the summons the subject of the present application.

17. The second of the principal submissions made on behalf of the applicant was that the summons is too wide and is oppressive.

18. The primary argument relied upon in support of this submission was that the trustee had, prior to the making of the application for the issue of the summons, made up his mind to institute proceedings against the applicant in relation to the subject matter of the proposed examination. In this regard, counsel relied upon correspondence that passed between the applicant and the then solicitors for the trustee in August 1990. The first item of correspondence was a letter dated 10 August 1990 forwarded to the applicant by the solicitors for the trustee reading as follows:

"RE: STRATA TITLE COMMERCIAL UNITS IN
FOAMCREST AVENUE, NEWPORT
We refer to our telephone conversations. We note that you
indicated that you would make an appointment to call and
discuss the matter with us.
We are instructed to write and advise you that unless our client
and ourselves are able to have a discussion with you on or before
next Friday, 17 August, 1990, we are to institute proceedings
without further delay."

In an affidavit sworn by Bernard Henry John Levy, Solicitor, on 13 September 1991, it is stated that the letter was written following two telephone conversations with the applicant which occurred after a visit by the trustee and Mr Levy to certain premises in an attempt, apparently unsuccessful, to see the applicant.

19. The applicant replied by letter dated 20 August 1990 acknowledging receipt of the letter dated 10 August 1990, requesting the solicitors to identify their client and the allegations made and stating that when that had been done "perhaps our discussions can take place". The solicitors forwarded to the applicant a further letter dated 24 August 1990 in the following terms:

"Thank you for your letter of 20 August, 1990.
We are instructed by William Edward Andrew, the Trustee for the
creditors of the bankrupt Estate of James Louis Florance.
We are instructed to advise you that our client, in our presence,
is prepared to discuss the matter with you and your legal
representative if you so wish. My client has no objection to Mr
Florance and his legal representative also attending such a
conference. Our client is not prepared to put in writing as a
pre-condition of the discussion, the issues which he wishes to
raise. We presume however from our earlier telephone
conversation, that you are appraised of these.
Whilst we have current instructions to commence proceedings
relative to the properties and dealings in them by yourself, Mr
Florance and companies associated with Mr Florance, we are to
wait one further week before commencing such proceedings so as to
afford you a final opportunity of a discussion on the matter."

20. It is common ground that no proceedings were, in fact, instituted. It appears from the affidavit of Mr Levy that an application was made by the trustee on 12 December 1990 for the issue of a summons under s.81(1) of the Act for the examination of the applicant and that a summons was issued but that no examination of the applicant took place pursuant to the summons as service of the summons could not be effected before the return date, namely 22 March 1991. It further appears from that affidavit that another summons was issued on 12 June 1991 but, again, service could not be effected before the return date, 19 July 1991. The summons the subject of the present application was then issued. Service of that summons was effected on 3 August 1991.

21. The correspondence does not make clear the nature of the proceedings that were contemplated at the time. Counsel for the trustee, however, informed the Court that proceedings under s.121 of the Act were in contemplation. It may be noted, in passing, that there may be some difficulty in applying that section as the transfer to the applicant of the strata title units did not take place, according to par.4 of the application for the issue of the summons, until after the commencement of the bankruptcy.

22. It was submitted on behalf of the applicant that, having regard to the decision to commence proceedings against the applicant referred to in the above correspondence, the Court should conclude that the examination of the applicant was sought not for the legitimate purpose of assisting the trustee in the administration of the estate but for the improper purpose of aiding the trustee in the conduct of the proposed proceedings, with the consequence that the applicant would be deprived of the safeguards that would be available to him if the trustee was to seek information by the ordinary procedures of discovery, interrogation and subpoena in the course of those proceedings. In this regard, counsel pointed to the provisions of s.81(10), (11), (15) and (17) of the Act, the text of which appears earlier in these reasons.

23. Two further matters were relied upon by counsel for the applicant. It was submitted that the issue of the summons was oppressive by reason of the length of time that has elapsed between the date of the sequestration order and the transfer of the units to the applicant on the one hand and the date of the application for the issue of the summons on the other. It was further submitted that the summons was too wide and was oppressive in requiring the production of documents covering the period from 1980 to the present time. Even if the summons was otherwise found to be unobjectionable, the documents to be produced pursuant to it should, so it was submitted, be confined to those that came into existence prior to or at the time of the transfer of the units to the applicant.

24. The application to set aside the summons was opposed by the trustee. Counsel on his behalf submitted that, although the application for the issue of the summons could have been expressed more clearly, it contained sufficient material to warrant the issue of the summons, that the reference in the correspondence to which reference has already been made to the commencement of proceedings against the applicant provided no bar to the issue of the summons, and that the summons was not oppressive and was not too widely expressed.

25. In considering the present application I have had regard to the relevant principles as summarised by a Full Court of this Court in Karounos v Official Trustee (1988) 19 FCR 330 at pp 335-6 and to the authorities referred to therein. I have also had regard to the summary by Nicholson J., albeit in relation to examinations under the companies legislation, in Re Rothwells Ltd (Prov Liq. Apptd) (1989) 15 ACLR 168 at pp 180-2.

26. There is considerable force in the criticisms made of the application for the issue of the summons. It may be accepted that the administration of the bankrupt estate has been a difficult one and has involved lengthy litigation. So much can be gleaned from a cursory perusal of the relevant file. But that circumstance, far from providing an answer to the criticisms, suggests that the trustee may have been in a position to spell out in greater detail than the application does the grounds upon which he was seeking the issue of the summons. In the light of the statement in Karounos v Official Trustee (supra) at p 336 that, upon such an application as the present, the Court must consider afresh, on the material before it, whether the summons should be set aside and not merely decide whether, on the material before the Deputy Registrar, he correctly exercised his discretion, it is surprising that the trustee did not avail himself of the opportunity to supplement the material that was before the Deputy Registrar. It would be reasonable to have expected the trustee to expand upon the reasons for the suspicion that the applicant was, in relation to the bankrupt, a person falling within s.81(1)(b) of the Act and to have explained, so far as that was possible, the considerable delay in applying for the issue of the summons. It would not, of course, have been necessary, as r.129(1) makes clear, for the trustee to verify by affidavit the factual material on which he relied.

27. The application is by no stretch of the imagination a model of what an application under s.81(1) should be. However, after giving the matter anxious consideration I have concluded that the application contains sufficient, though barely sufficient, material to avoid the setting aside of the summons. I have reached that conclusion on the basis that it may properly be inferred from what is stated in the application that the trustee has material which at least suggests that the strata title units were the property of the bankrupt albeit registered in the name of Civic Ice Rinks Pty Limited and that the transfer of the units shortly after the bankruptcy to the applicant who used an assumed name for the purpose, gives rise to a supposition reasonably based, that the applicant is able to give relevant information as to the real ownership of the units and, in particular, whether he holds the units as nominee for, or as trustee of, the bankrupt. I note, too, that the applicant has not put before the Court any evidence disclaiming or disputing that he is a person capable of giving information concerning the matters particularised in the summons. It is clear from the material contained in Mr Levy's affidavit that the applicant has not been willing to assist the trustee by providing information concerning the circumstances surrounding his becoming registered as the proprietor of the strata title units or his subsequent dealings with them.

28. The circumstance that the transfer pursuant to which the applicant became registered as the proprietor of the units occurred almost 12 years ago has also given me cause for concern, particularly in the absence of any explanation by the trustee in that regard. In the somewhat similar situation that arose in Re Pesic (25 February 1987 - unreported) - although the delay there was only a little over 4 years - I said:

"Apart from the question of dilatoriness on the part of the
trustee and subject to a qualification to be mentioned, there is
no doubt that the matters identified in the summonses are matters
upon which it is proper that the applicants be examined. The
material before the Court clearly establishes a case for such
examinations to take place.
Were it appropriate to have regard only to the interests of the
trustee, I would have no hesitation in setting aside the summonses
as no explanation has been offered for what is clearly a long
period of delay between the time when the trustee had knowledge of
the subject matter into which he now wishes to enquire further.
However, it is not the interests of the trustee but the interests
of the creditors as a whole that must be taken into account.
Their interests must be considered in the context of a bankrupt
estate in which, according to the bankrupt's statement of affairs,
his estate had assets of $15 and creditors with debts totalling in
excess of $32,000."

Similar considerations lead me to conclude in this case that the long delay and the absence of any explanation for it, are not sufficient to warrant the summons being set aside.

29. The applicant has failed to satisfy me that there is any basis for concluding that the issue of the summons for the examination of the applicant was sought for any purpose other than the legitimate purpose of assisting in the administration of the bankrupt estate.

30. Having reached the conclusions expressed above, I think the summons is not too widely expressed in informing the applicant that he is to be examined in relation to the part which the bankrupt played in the transfer of the units into the name of Peter Nelson, the mortgaging of those units, the subsequent discharge of those mortgages and the letting of the units in the name of Peter Nelson. I am also satisfied that it is appropriate to require the applicant to produce any of the documents particularised in the summons which are now in his custody or power.

31. There is, however, one respect in which the summons is too widely expressed. It informed the applicant that he is to give evidence "in connection with the property, trade dealings and affairs of the bankrupt, James Louis Florance, and in particular" the matters thereafter identified. The summons in this respect departs from Form 49 and attracts a similar comment to that voiced by Gibbs J. (as he then was) in Re Wyatt (1969) 15 FLR 374 at p 375. See also Re Weiss; Ex parte Official Receiver [1983] FCA 361; (1983) 74 FLR 259 at p 265. The word "including" immediately preceding the statement of the documents to be produced should also be deleted. It serves no useful purpose in the context of the previously stated requirement that the applicant produce "any of the following documents".

32. I am, therefore, of opinion that the summons should be amended by deleting the words "the property, trade dealings and affairs of the bankrupt, James Louis Florance, and in particular" and the word "including" preceding the specification of the documents to be produced but that otherwise the application should be dismissed. I so order. As much of the difficulty has stemmed from the form of the application and the paucity of material contained in it, I make no order as to costs.