Ruhe (Trustee), in the matter of Power (Bankrupt) [2019] FCA 2179

FEDERAL COURT OF AUSTRALIA

File number(s):	VID 452 of 2019

Judge(s):	ANDERSON J

Date of judgment:	20 December 2019

Catchwords:	BANKRUPTCY – where bankrupts are summonsed to give evidence and produce documents at examination – where arrest warrants against bankrupts are issued and executed – where trustees seek order granting the bankrupts bail on certain conditions – whether bankrupts should be granted bail on what terms proposed by trustees PRACTICE AND PROCEDURE – consideration of Court’s power to grant bail to bankrupts pending examination Held: bankrupts granted bail upon conditions – bankrupts to give evidence and produce documents at examination

Legislation:	Bankruptcy Act 1966 (Cth) ss 23, 81, 264B

Cases cited:	Adamas v O’Connor (No 3) [2012] FCA 365 Nathan v Burness [2010] FCA 718 Zentai v O’Connor [2009] FCA 1597; 263 ALR 511

Date of hearing:	20 December 2019

Registry:	Victoria

Division:	General Division

National Practice Area:	Commercial and Corporations

Sub-area:	General and Personal Insolvency

Category:	Catchwords

Number of paragraphs:	7

Counsel for the Applicant:	Mr Daniel C Harrison

Solicitor for the Applicant:	Cornwalls Lawyers

Counsel for the Bankrupts:	The Bankrupts appeared in person

ORDERS

VID 452 of 2019

IN THE MATTER OF THE BANKRUPT ESTATE OF RODERIC WILLIAM POWER

BETWEEN:

ALICE FAY RUHE AND KENNETH STEWART SELLERS (AS TRUSTEES OF THE BANKRUPT ESTATES OF RODERIC WILLIAM POWER AND MARGARET CHRISTINE POWER)

Applicant

JUDGE:	ANDERSON J
DATE OF ORDER:	20 december 2019

THE COURT ORDERS THAT:

1. The return of summonses addressed to Roderic William Power and Margaret Christine Power be adjourned to 10 February 2020 at 9:30am at the Federal Court of Australia, Law Courts Building, 184 Phillip St, Queens Square, Sydney, NSW 2000 (NSW Registry).

2. Subject to conditions set out in paragraph 3 of this Order and any further order of this Court, Roderick William Power is hereby remanded on bail.

3. The remand on bail of Roderick William Power is subject to the conditions that he:

(a) not make any application for any passport; and

(b) appear before a Registrar of this Court at 9.30am on 10 February 2020 at the NSW Registry for the production of documents and examination pursuant to the summons issued under s 81 of the Bankruptcy Act 1966 (Cth) addressed to him.

4. Subject to condition set out in paragraph 5 of this Order and any further order of this Court, Margaret Christine Power is hereby remanded on bail.

5. The remand on bail of Margaret Christine Power is subject to the conditions that she:

(a) not make any application for any passport; and

(b) appear before a Registrar of this Court at 9.30am on 4 February 2020 at the NSW Registry for the production of documents and examination pursuant to the summons issued under s 81 of the Bankruptcy Act 1966 (Cth) addressed to her.

6. Until further order of the Court, the service of documents on Roderick William Power and Margaret Christine Power be effected by:

(a) sending the documents by mail to 29 Lakeview Street, Toukley, New South Wales, 2263; or

(b) sending the documents by mail addressed to Dominic Nash at Nash Allen Williams & Wotton, 2/264 Main Road, P.O. Box 30, Toukley, NSW, 2263; or

7. Roderick William Power and Margaret Christine Power have liberty to apply to the Court on 48 hours’ notice to the Applicant.

8. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

1 Roderic William Power and Margaret Christine Power are bankrupts. They were made bankrupt by order of the Federal Circuit Court of Australia on 22 March 2016 and 30 November 2017 respectively. Alice Fay Ruhe and Kenneth Stewart Sellers (Trustees) are the joint and several trustees of their bankrupt estates.

2 Earlier this year, the Trustees applied for, and obtained, summonses issued to the bankrupts under s 81 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) for the bankrupts to give evidence and produce documents at an examination in relation to their bankruptcy. However, the bankrupts evaded personal service of those summonses and, after substituted service orders were made, failed to attend the examination as required. As a result, on 11 December 2019, a Registrar of the Court issued arrest warrants pursuant to s 264B of the Bankruptcy Act for the apprehension of the bankrupts to compel their attendance at the examination.

3 Today, on 20 December 2019, the arrest warrants were executed by NSW Police and the bankrupts were brought to the local police station in Wyong, New South Wales. The parties appeared before me as Commercial & Corporations Duty Judge on an urgent basis (with the bankrupts appearing via video-link). The Trustees applied for an order that the bankrupts be granted bail upon the condition that the bankrupts surrender to the Court at an appointed time.

4 The application is before me (as a judge of the Court) because of concerns that a Registrar does not have power to award bail: see Zentai v O’Connor [2009] FCA 1597; 263 ALR 511 at [32] per McKerracher J; Adamas v O’Connor (No 3) [2012] FCA 365 at [13]-[15] per McKerracher J.

5 I am satisfied that I have power to grant the bail sought under the general powers conferred on the Court by s 23 of the Federal Court Act 1976 (Cth) and s 30(1)(b) of the Bankruptcy Act. In the circumstances of this case, and based upon the affidavit material filed by the Trustees in the proceeding, I am satisfied that the orders granting bail to the bankrupts should be made. However, I will do so on terms slightly different to those proposed by the Trustees.

6 The bankrupts will be required to comply with the terms of my orders. If they continue to resist compliance with the orders of the Court, or otherwise breach their bail conditions, they may be liable to further penalties.

7 I will make the following orders:

2. Subject to conditions set out in paragraph 3 of this Order and any further order of this Court, Roderick William Power is hereby remanded on bail.

3. The remand on bail of Roderick William Power is subject to the conditions that he:

(a) not make any application for any passport; and

4. Subject to condition set out in paragraph 5 of this Order and any further order of this Court, Margaret Christine Power is hereby remanded on bail.

5. The remand on bail of Margaret Christine Power is subject to the conditions that she:

(a) not make any application for any passport; and

6. Until further order of the Court, the service of documents on Roderick William Power and Margaret Christine Power be effected by:

(a) sending the documents by mail to 29 Lakeview Street, Toukley, New South Wales, 2263; or

(b) sending the documents by mail addressed to Dominic Nash at Nash Allen Williams & Wotton, 2/264 Main Road, P.O. Box 30, Toukley, NSW, 2263; or

7. Roderick William Power and Margaret Christine Power have liberty to apply to the Court on 48 hours’ notice to the Applicant.

8. Costs be reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.

Associate:

Dated: 20 December 2019

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