Woodgate (Trustee), in the matter of Anstee (Bankrupt) [2025] FedCFamC2G 863 (6 June 2025)

Australian Constitution, s 72, Ch III

Bankruptcy Act 1966 (Cth) ss 5(1), 5B(1), 5C(1), 19, 30, 33A, 81, 129AA

Bankruptcy Amendment Act 1987 (Cth), s 38

Corporations Act 2001 (Cth) s 596A

Income Tax Assessment Act 1936 (Cth) s 264(1)

Judiciary Act 1903 (Cth) s 39B(1)

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth), r 2.03 r 6.16(1), (4), r 6.12

Federal Court Rules 2011 (Cth), r 24.15(1)

Ex parte Willey; Re Wright [1883] UKLawRpCh 78; (1883) 23 Ch D 118

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Karounos v Official Trustee [1988] FCA 180; (1988) 19 FCR 330

Palmer v Ayres [2017] HCA 5

Psomas (Trustee), in the matter of Moran (Bankrupt) [2024] FCA 1259

Re Cheryl Kathleen Osenton Ex Parte: Cheryl Kathleen Osenton v Ivor Worrell and Alcan Australia Ltd [1995] FCA 1105

Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381

Roufeil (Trustee), in the matter of Tarrant (Bankrupt) v Tarrant (Bankrupt) [2018] FCA 1616

R v NM [2012] QCA 173

Smorgon v Federal Commissioner of Taxation (1979) 143 CLR 499

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF BARRY FRANCIS ANSTEE, BANKRUPT

1. Pursuant to r 6.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) the summons for examination filed on 7 February 2025 addressed to Lynette Mavis Anstee be discharged to the extent it requires the production of the documents specified in paragraphs 1, 2, and 4(j), (m), and (p) of the schedule to the summons for examination.
2. Page 1 of the examination summons referred to in order 1 be amended by adding the words "that are in your possession" after the words "the books listed on the next page".
3. The interim application filed by Lynette Mavis Anstee on 1 May 2025 is otherwise dismissed.
4. Subject to order 5, Lynette Mavis Anstee pay the applicant's costs of the interim application.
5. Lynette Mavis Anstee and the applicant have liberty to apply within 14 days after these orders are pronounced to vary or discharge order 4.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Ms Lynette Mavis Anstee applies for an order that a summons issued against her pursuant to s 81 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), and each of the three summonses issued against three other persons, also pursuant to s 81 of the Bankruptcy Act, be discharged or set aside. The three other persons are the Commonwealth Bank of Australia (CBA), Westpac Banking Corporation (WBC), and Mr Kevin McMaster Rodgers. Ms Anstee applies, or purports to apply, for these orders pursuant to r 6.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). The summonses were issued on the application of the trustee in bankruptcy (Trustee) of the estate of Mr Barry Francis Anstee.
2. Ms Anstee also applies for an order under s 33A of the Bankruptcy Act that Mr Anstee is to be taken to have filed his statement of affairs on 28 August 2005, or on 19 September 2005, or at such other date "that the Court sees fit". If such order is made, Ms Anstee further seeks, in effect, a declaration that Ms Anstee's bankruptcy has been discharged pursuant to s 129AA of the Bankruptcy Act.
3. These reasons are arranged as follows.

(a) First, I will set out the background, as revealed by a number of documents, and matters deposed to, principally by Ms Anstee. For ease of expression, I will set out the matters to which Ms Anstee deposes without noting that it is a fact to which Ms Anstee deposes; but my doing so is not intended, and should not be taken, to constitute a finding of the fact stated.

(b) Second, I will set out, and construe, the relevant parts of s 81 of the Bankruptcy Act; and I will set out that part of the Bankruptcy Rules that applies to the making of an application for the issue of a summons under s 81.

(c) Third, I will identify the source of the Court's power to set aside a summons issued pursuant to s 81 of the Bankruptcy Act, and describe the nature of the jurisdiction the Court exercises when an application is made to the Court to exercise such power.

(d) Fourth, I will consider whether Ms Anstee has standing to apply to set aside a summons addressed to persons other than herself.

(e) Finally, I will consider whether any of the summonses should be set aside.

1. Ms and Mr Anstee married in 1973. In 1975 Ms Anstee gave birth to her daughter, Larissa; and in 1977 she gave birth to her son, Matthew.
2. In 1976 Mr Anstee began a company called Halfacre Properties Pty Ltd through which he conducted the business of property development.
3. In 1977, after the birth of Matthew, Mr Anstee created the Anstee Trust by a trust deed. The trust deed "stated a beneficiary would be any "future wife" of Barry", which Ms Anstee understood to mean that she, as Mr Anstee's wife, could not be a beneficiary of the Anstee Trust.[1] After the Anstee Trust was formed, Ms Anstee conducted her financial affairs through her own personal bank accounts, and she has done so to date without the involvement of Mr Anstee or of any of his entities.[2]

1. In 1980 Ringtala Pty Ltd, the trustee of the Anstee Family Trust, purchased a property at 2 Glen-Ayr Avenue, Yowie Bay in the Sutherland Shire as a family residence (Yowie Bay Property). The Yowie Bay Property, which was subject to mortgages, was transferred to Ms Anstee as trustee for the Anstee Family Trust.[3]
2. In 1991 the first mortgagee took possession of the Yowie Bay property and sold it. Mr and Ms Anstee's relationship broke down, and they separated. Ms Anstee understands that Mr Anstee had a relationship with another woman at around that time.[4]
3. After Mr and Ms Anstee and their children vacated the Yowie Bay Property, Ms Anstee and her children moved in with her parents to rented premises in Bonnett Bay. In 1992 Ms Anstee and her children moved to rented premises in Oatley. In 1993 Ms Anstee received a cash inheritance of around $56,000 from a deceased uncle.[5]

Acquisition of Hopewood Property and Tresco Property

1. In early 1997 Rellgrove Pty Ltd (Rellgrove) purchased a property at Centennial Road, Bowral (Hopewood Estate). Mr Anstee was the sole director of Rellgrove. In March 1997 Mr Anstee informed Ms Anstee that the Hopewood Estate was held on trust for her. In March 1997 Brock Partners provided to Ms Anstee a transfer of the Hopewood Estate.[6] Ms Anstee exhibits to her affidavit an unstamped instrument of transfer dated 26 June 1997, apparently executed by Rellgrove as transferor, and by Ms Anstee as transferee. Ms Anstee moved into the Hopewood Estate "and started to live in and maintain the property and make it a commercial venture".[7]
2. In September 1997 Mr Anstee agreed to purchase a property at Elizabeth Bay (Tresco Property); and in January 1998, after he settled the purchase, the children lived with Mr Anstee at the Tresco property.[8] Mr Anstee continued to live in the Tresco Property with the children until 2004, and Ms Anstee continued to live in the Hopewood Estate until 2007.[9]

1. In the meantime, in the latter part of 2000, Ms Anstee became aware from mutual acquaintances and newspaper articles that Mr Anstee had acquired a property known as The Maltings. Ms Anstee does not know how Mr Anstee funded the purchase. Ms Anstee, however, is now aware that Mr Anstee funded the original purchase of The Maltings with a loan of $910,000 from Southern Finance & Investment Pty Ltd (Southern).[10] Ms Anstee is also now aware that the mortgage to Southern was varied to secure the sum of $2.5 million.[11] Although in her first affidavit Ms Anstee says that Mr Anstee acquired The Maltings, Ms Anstee exhibits to her second affidavit two variations of mortgages, one dated 21 March 2001 varying the amount secured to $1.625 million, and the second dated 14 September 2001 increasing the amount secured to $2.5 million. These show that the mortgagor, and therefore the registered proprietor, was a company called Velowing Pty Ltd (Velowing).[12] Ms Anstee says that Velowing owned a 4/5 share of The Maltings, and Mr Anstee owned a 1/5 share.[13]

28 July 2005 Sequestration order and report to creditors

1. On 28 July 2005 a sequestration order was made against the estate of Mr Anstee, and Mr Prentice was appointed his trustee in bankruptcy. On 23 November 2005 Mr Prentice issued a report to creditors (RTC), in which he stated the following:

(a) At a meeting of 25 August 2005 Mr Anstee told Mr Prentice that he had separated from his wife, Ms Anstee, in 1991; from 1990 to 1999 Mr Anstee had a relationship with another woman; he currently lived with his father in law, Mr Harold Berry (Harold); and he has a son living in Neutral Bay who worked with Ms Anstee at a real estate agent's office.

(b) At a meeting held on 19 September 2005 Mr Anstee provided information to Mr Prentice about properties and his income. Mr Anstee said that he would complete and file his statement of affairs (SOA), but in the meantime Mr Anstee provided to Mr Prentice "an almost complete" SOA, which Mr Prentice copied. Mr Anstee said he had "not yet filed the final and executed version with the Official Receiver".

(c) Mr Anstee was the registered proprietor of a one fifth interest in The Maltings. Velowing was the registered proprietor of the other four fifths. The Maltings was subject to a mortgage to Southern, and to CKM (Mortgages) Pty Ltd (CKM).

(d) Rellgrove was the registered proprietor of the Hopewood Estate who purchased it as trustee for Ms Anstee; Rellgrove had transferred the Hopewood Estate to Ms Anstee; and Ms Anstee lived at that property.

(e) Mr Anstee was the sole director and shareholder of Rellgrove. Mr Anstee told Mr Prentice he did not have any general role in Rellgrove or in the Hopewood Estate. The former office manager of Rellgrove, however, contacted Mr Prentice's office and said that she had worked with Hopewood Estate, and that she had worked directly for Mr Anstee from 22 February 1999 to 17 May 2003.

(f) The Hopewood Estate was subject to a mortgage to Hocana Pty Ltd (Hocana). The shareholders and office holders of Hocana were member of Stacks in Taree, a law firm. On 26 October 2005 Mr Ray Stack informed Mr Prentice that Hocana was selling The Hopewood Estate on 10 December 2005 by public auction. Mr Stack calculated that approximately $3.6 million, would be required to pay out the mortgage owing to Hocana, and that he expected the property to sell for between $4 to $5 million. Mr Stack verbally undertook to transfer to Mr Prentice surplus funds from the sale.

(g) At that stage of the investigation, there did not appear to be "any pre-bankruptcy transactions other than the property dealings referred above".

1. Mr Anstee deposes that he met with Mr Prentice on 25 August and 19 September 2005. Mr Anstee says that at his meeting of 25 August 2005 he gave to Mr Prentice "the Statement of Affairs", a copy of which Mr Anstee says is at Tab 8 of Exhibit LMA-1 to Ms Anstee's affidavit of 15 April 2025 (Purported SOA). The Purported SOA is plainly incomplete. For example, Mr Anstee ticked the "yes" box in answer to the question whether in the past five years Mr Anstee had operated a business as a sole trader, via a partnership, company, or trust; and the form directed the person ticking the "yes" box to go to Part E of the Purported SOA. Apart from Mr Anstee having ticked the "yes" box in answer to the same question, Mr Anstee provided no responses to the questions asked in Part E of the Purported SOA.
2. Mr Anstee also deposes that on 19 September 2005 he recalls providing Mr Prentice with "another Statement of Affairs which was complete when the meeting commenced, except for [Mr Anstee's] signature." Mr Anstee says he also recalls he signed the Statement of Affairs, Mr Prentice took a copy of it, gave Mr Anstee an office address and postal address for ITSA (that is, Insolvency and Trustee Service Australia), and directed Mr Anstee to post the original copy. Mr Anstee says he posted the Statement of Affairs "to the address for ITSA" Mr Prentice provided to him.
3. On 18 May 2006 Mr Robinson was appointed trustee in bankruptcy of Mr Anstee's estate in place of Mr Prentice.

1. Ms Anstee became aware in late 2005 that there were issues of finance in relation to the Hopewood Estate, that Mr Anstee and Matthew were trying to make arrangements to secure the property, and that those attempts were unsuccessful. That led Ms Anstee to look to buy a property, because she knew that "the Hopewood issue was unlikely to resolve favourably".[14] At that time, Ms Anstee owned two properties known as 8 Wombeyan Caves Road, which Harold had purchased (Wombeyan Caves Property).[15]
2. In late 2007, the first mortgagee of the Hopewood Estate took possession of it. Ms Anstee vacated the property, and she went to live with Mr Anstee at a property in Mittagong.[16]
3. In 2007 Ms Anstee obtained a loan, mainly from friends, secured by a mortgage over the Wombeyan Caves Property. In early 2008 Matthew opened a real estate agency in Bowral utilising funds Ms Anstee had available. In August 2008 Ms Anstee refinanced the loans secured on the Wombeyan Caves Property with the CBA. Since 2008, Ms Anstee has been working for Matthew as a commission sales agent.[17]

1. In 2011 Ms Anstee became aware of the listing for sale of 5 Allambie. She introduced Mr Kevin Rodgers to the listing agent. Mr Rodgers is a partner of the law firm Brock Partners Solicitors, who has been a close personal friend of Ms Anstee for over 30 years. Ms Anstee informed Mr Rodgers of the listing for sale of 5 Allambie because Mr Rodgers had previously expressed an interest in acquiring that property. Mr Rodgers purchased 5 Allambie in October 2011 through Willow Vale Meadows Pty Ltd (Willow Vale).[18]
2. Two dwellings are erected on 5 Allambie. One is a two-bedroom cottage above garaging. Ms Anstee has furnished the two-bedroom cottage with furniture she owns, and it is used by Mr Rodgers when he and his friends visit 5 Allambie. The other dwelling is a repurposed barn building with a first-floor studio, bedroom, bathroom, small kitchenette, and a small living area. Ms Anstee has been living in the barn building since 2011, when she moved there after Harold died in 2011. Ms Anstee began living there at the invitation of Mr Rodgers, on condition that she pay for electricity and gas, and garbage collection services. Ms Anstee also pays for the gardens to be maintained.[19]
3. Mr Anstee "occasionally stayed in the two-bedroom cottage", and he "also very occasionally stayed in the barn cottage, or at other friends' places, or at Matthew's farm" at Sutton Forrest.[20] From December 2023 to January 2024 Mr Anstee was in hospital, and then spent three months in a cottage on Matthew's farm. Ms Anstee now cares for Mr Anstee at the barn cottage.

Official Trustee replaces Mr Robinson as trustee in bankruptcy

1. On 31 October 2017, the Official Trustee replaced Mr Robinson as trustee in bankruptcy of Mr Anstee's estate. On 14 October 2020 the Trustee replaced the Official Trustee as the trustee in bankruptcy of Mr Anstee's estate.

1. Ms Anstee is aware that in July 2018 Matthew expressed an interest in acquiring the mortgage SFI held in the Maltings (SFI Mortgage), as he had considerable cash reserves to do so. At that time Matthew operated a company known as Oneoz Pty Ltd (Oneoz) of which he and Mr Shane John Brown were shareholders. Matthew approached Mr Brown to incorporate a company known as Twooz Pty Ltd (Twooz) to be the trustee of the Allambie Unit Trust, to acquire the SFI Mortgage. The Allambie Unit Trust has one beneficiary, namely, the "LMA Super Fund". Ms Anstee is the sole beneficiary of the LMA Super Fund.[21]
2. Twooz was incorporated on 20 September 2018. Mr Brown was the sole director and shareholder of that company. Ms Anstee understands that a second mortgage was registered on the title on 28 February 2019, "the purchase of the first mortgage [was] completed on 7 March 2019 and the mortgagees exercised a power of sale to sell The Maltings properties to Medich Properties Pty Ltd on 7 March 2019".[22] Ms Anstee further deposes as follows:[23]

I became aware of this transaction on 11 March 2019 when Matthew advised that Twooz Pty Ltd, of which [Mr Brown] was the director, had to be removed as trustee of the Allambie Unit Trust and replaced by my company Jamsapi Pty Ltd as the new trustee.

This Removal of Trustee and Appointment of New Trustee of the Allambie Unit Trust was effected, and Shane instructed Clayton Davis, Principal of Stacks Law, to take instructions from me for disbursement of the funds realised by the mortgagees from the sale of The Maltings property.

I was advised by Stacks Law that there was no surplus available from the sale of The Maltings for anyone other than the mortgagees who exercised the power of sale.

1. Ms Anstee exhibited to her first affidavit what she describes as "the trust account statement for that sale".[24] The trust account records the following (among other things):

(a) The receipt on 21 November 2018 of $605,000 from Medich Properties. That is described as a "deposit".

(b) The receipt on 7 March 2019 of $2,944,140.40 from Twooz. It is described as a "Proceeds of Sale".

(c) There are three payments to Ms Anstee of $300,000, $250,000, and $2,900,000 made on 12, 20, and 25 March 2019 respectively, each described as "Settlement Funds as directed by client".

(d) The payment on 28 March 2019 of $13,160 to Bowral Removals and Storage.

14 October 2020 - Trustee appointed and referral to AFSA

1. On 14 October 2020 the Trustee replaced the Official Trustee as the trustee in bankruptcy of Mr Anstee's estate.
2. Shortly after 14 October 2020, the Trustee referred Mr Anstee's apparent failure to file a SOA (now known as a "Bankruptcy Form" (BF)) to the Australian Financial Security Authority (AFSA). According to a statement dated 25 August 2022 made by Ms Gunawan, a senior investigator attached to AFSA,[25] on 19 May 2022 a search of the National Personal Insolvency Index revealed no record of Mr Anstee having lodged a BF. According to a statement made on 11 January 2023 by Ms Wilson, an inspector within the Practitioner Supervision section of AFSA:

(a) On 8 December 2021 Ms Wilson issued a compliance letter to Mr Anstee requiring him to complete and file a BF within 14 days. On the same day, Mr Anstee telephoned Ms Wilson. Mr Anstee confirmed he had been made bankrupt approximately 16 years ago; he started completing a BF online, but "requires further information from his creditors to confirm his debts to complete the form"; Mr Anstee believed his trustee had not been properly appointed in accordance with the Bankruptcy Act; Mr Anstee had not previously been advised by his former trustee, Mr Robinson, that his SOA had not been filed; Mr Anstee believed he had previously provided a completed SOA to Mr Prentice; and Mr Anstee intended to file his Bankruptcy Form and apply to the court to have a filing backdated to 2005.

(b) On 22 December 2021 Ms Wilson returned a missed call from Mr Anstee. Mr Anstee said he had not yet finished completing the BF "as he was still awaiting information from creditors". Mr Anstee indicated he would have the BF completed by 10 January 2022, and requested Ms Wilson delay referring him "to the CDPP". Ms Wilson said she was not able to grant Mr Anstee an extension of time.

1. Mr Anstee filed a BF on 30 November 2022.[26] By email sent on 1 December 2022 Mr Anstee provided the Trustee with a copy of the BF. On 5 December 2022 the Trustee sent an email to Mr Anstee in which he noted that the BF Mr Anstee filed did not record any creditors; and he invited Mr Anstee to apply for an annulment of his bankruptcy.[27]

SECTION 81 OF THE BANKRUPTCY ACT

1. Subsection 81(1) of the Bankruptcy Act provides:

Where a person (in this section called the relevant person) becomes a bankrupt, the Court or a Registrar may at any time (whether before or after the end of the bankruptcy), on the application of:

(a) a person (in this section called a creditor) who has or had a debt provable in the bankruptcy;

(b) the trustee of the relevant person's estate; or

(c) the Official Receiver;

summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy.

1. The power to summon a person is subject to express limitations to be found in the text of s 81; and also to at least two implied limitations.

1. Subsection 81(1) contains three express limitations to the power it confers on the Court or a Registrar to summon a person. First, s 81(1) limits the classes of persons who may apply to summon a person (s 81 applicant), these being a creditor of the bankrupt, or the trustee of the bankrupt's estate, or the Official Receiver. Second, s 81(1) limits the classes of persons who may be summoned (examinee), these being the "relevant persons", that is, the bankrupt; and an "examinable person", which s 5(1) defines as follows:

Examinable person, in relation to a person (in this definition called the relevant person), means:

(a) if the relevant person is a debtor and property of the debtor is known or suspected to be in the possession of a person - that person;

(b) if the relevant person has become a bankrupt and any of the property of the bankrupt is known or suspected to be in the possession of a person - that person;

(c) in any case - a person who is believed to be indebted to the relevant person;

(d) if a person, including:

(i) a person who is an associated entity of the relevant person; or

(ii) a person with whom an associated entity of the relevant person is or has been associated;

may be able to give information about the relevant person or any of the relevant person's examinable affairs - that person; or

(e) if books (including books of an associated entity of the relevant person):

(i) are in the possession of a person, including a person of a kind referred to in subparagraph (d)(i) or (ii); and

(ii) may relate to the relevant person or any of the relevant person's examinable affairs;

that person.

1. Third, s 81(1) limits the purpose for which an examinee may be summoned, namely, an "examination in relation to the bankruptcy". That expression is further limited by s 81(1A) of the Bankruptcy Act, which provides:

A summons to a person by the Court or the Registrar under subsection (1) shall require the person to attend:

(a) at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances; and

(b) before the Court or the Registrar or, if the Court or the Registrar thinks fit, a magistrate;

to be examined on oath under this section about the relevant person and the relevant person's examinable affairs.

1. There are three matters to note about s 81(1A). First, the expression "examination on oath" may be taken to mean the examinee's being asked questions, and the examinee's answering those questions on oath, that is, after he or she has sworn or affirmed to tell the truth. Thus, s 81(1) authorises the Court or a Registrar to summon the relevant person to attend a particular place at a particular time and date for the purpose of being asked questions, and the person's answering those questions on oath. Second, there is the word "about"; it is used as a preposition and, as such, "is a word of connection". [28] "About" connects "being examined on oath" with two things: the "relevant person", that is, the bankrupt; and the relevant person's "examinable affairs". More particularly, "about", as it appears in s 81(1A), denotes the asking of questions that are connected with, or concern, the relevant person and the relevant person's "examinable affairs".[29] Third, there is the expression "examinable affairs", which, in s 5(1), is defined to mean, in relation to a person:

(a) the person's dealings, transactions, property and affairs; and

(b) the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs.

1. "Associated entity, in relation to a person" is defined in s 5(1) of the Bankruptcy Act to mean:

(a) an entity (other than a company) that is, or has been, associated with the person; or

(b) a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company.

1. Subsection 5B(1) of the Bankruptcy Act specifies when a company is taken to be associated with a person. That includes where the person is a company officer of the company, or is otherwise concerned, or takes part, in the company's management, or is a member of the company. Subsection 5C(1) specifies when a natural person (associate) is taken to be associated with a person. That includes where the person holds property jointly with the associate, or is a trustee of a trust under which the associate is capable of benefiting.
2. In addition to authorising the summoning of a person to be examined on oath, a summons that is issued pursuant to s 81(1) may also require the person to whom it is addressed to produce books at the appointed time and place at which the persons is to be examined on oath. That follows from s 81(1B), which provides that a summons:

may require the person to produce at the examination books (including books of an associated entity of the relevant person), that:

(a) are in the possession of the first-mentioned person; and

(b) relate to the relevant person or to any of the relevant person's examinable affairs.

1. The expression "in the possession of" is defined in s 5(1) to include "in the custody of or under the control of".
2. Rule 6.12 of the Bankruptcy Rules prescribes the procedure by which a s 81 applicant may apply for a summons under s 81(1):

(1) An application under section 81 of the Bankruptcy Act for an examinable person in relation to a relevant person to be summoned for examination in relation to the relevant person's bankruptcy must be in accordance with Form B10.

(2) The application must be accompanied by:

(a) a draft of the summons applied for; and

(b) an affidavit that complies with subrule (3).

(i) a creditor who has a debt provable in the bankruptcy; or

(ii) the trustee of the relevant person's estate; or

(iii) the Official Receiver; and

(b) state the facts relied on by the applicant to establish that the person to be summoned is an examinable person; and

(c) if the summons is to require an examinable person to produce books at the examination:

(i) identify the books that are to be produced; and

(ii) give details of any inquiry by the applicant about the books to be produced and any refusal by the examinable person to cooperate with the inquiry.

(4) If the affidavit is lodged with a Registry for filing (other than by being sent to the Registry by electronic communication), it may be filed in a sealed envelope marked "Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966".

(5) If the affidavit is sent by electronic communication to a Registry for filing:

(a) the affidavit may be marked "Confidential"; and

(b) if the affidavit is so marked - the accompanying explanation must state that the affidavit is a "confidential affidavit supporting an application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966".

(a) filed in a sealed envelope in accordance with subrule (4); or

(b) marked "Confidential" as permitted by paragraph (5)(a);

a Registrar must not make it available for public inspection.

Implied limitations - summons must describe books in terms that expressly reflect the statutory limitations

1. There are two implied limitations to the exercise of the power conferred by s 81(1). The first is the limitation McDonald J discussed in Psomas (Trustee), in the matter of Moran (Bankrupt) (Psomas).[30] In that case McDonald J held that his Honour was "required to apply the requirements stated in" Smorgon v Federal Commissioner of Taxation[31], "adapted as necessary to relate them to a summons under s 81 of the Bankruptcy Act". Smorgon concerned the validity of a notice issued purportedly pursuant to s 264(1) of the Income Tax Assessment Act 1936 (Cth). Mason J (as his Honour then was) said (emphasis added):[32]

As the Commissioner's coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produced to the class of which the Commissioner is authorized to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner's authority. Because the exercise of the power casts onerous obligations on the recipient of a notice, and because the recipient (not being the taxpayer) is only justified, vis-a-vis the taxpayer, in producing the taxpayer's documents without his consent in response to a valid demand, it is for the Commissioner so to formulate his notice that this limitation on his authority is drawn to the attention of the recipient.

1. Gibbs ACJ (as his Honour then was) said (emphasis added):[33]

To be valid a notice to produce documents under s. 264 (1) (b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind - a requirement to produce documents relating to the income or assessment of some person - and a notice requiring the production of documents not so related is beyond the scope of the power.

1. Thus, to be valid, a summons issued pursuant to s 81 of the Bankruptcy Act that requires the productions of books must on its face make it apparent that the books it requires the examinee to produce are, first, in the possession of the person to whom the summons is addressed and, second, relate to the relevant person, that is, the bankrupt, or to any of the bankrupt's examinable affairs. That is what McDonald J held in Psomas:[34]

In any case, it is well established that, in order to be valid, a summons must describe the categories of documents sought in terms that expressly reflect the limits of the authority conferred by s 81. In particular, it is necessary to state that the documents sought be expressly limited to documents in the possession (in the defined sense) of the recipient: Osenton at 36. It is in the first instance the responsibility of a trustee who applies for the issue of a summons to draft the summons in terms that observe the limits imposed by s 81.

1. McDonald J, however, noted that it is not necessary for a summons to include the words "the bankrupt's examinable affairs" if "the summons otherwise identifies a class of documents in terms that make it apparent that all of the documents must fall within the concept of the bankrupt's examinable affairs".[35] His Honour continued:[36]

So, for example, a summons seeking only documents which effected a transfer of assets from the bankrupt to another entity would be permissible, because such documents would necessarily relate to the bankrupt's "dealings, transactions, property or affairs". On the other hand, the description of a class of documents, some of which may or may not fall within the concept is not authorised by s 81 (as illustrated by the description in Smorgon of documents in a particular deposit box, without any additional words restricting the class to those whose production the Commissioner was empowered to require).

1. The effect of McDonald J's judgment is that the examinee must be able to determine from the face of the summons itself that the books the summons requires the examinee to produce are documents that are in the possession of the examinee, and that the books relate to the bankrupt, or to the bankrupt's examinable affairs.

Implied limitations arising from application under s 81 giving rise to a "matter"

1. A second implied limitation on the power conferred by s 81 arises from the High Court's having held in Palmer v Ayres that an application for a summons under s 596A of the Corporations Act 2001 (Cth) (Corporations Act), being analogous to s 81 of the Bankruptcy Act, gives rise to a constitutional "matter" whose determination involved the exercise of the judicial power of the Commonwealth.[37]
2. The question in Palmer was whether s 596A of the Corporations Act was invalid as contrary to Ch III of the Constitution in that it confers non-judicial power on federal courts and courts exercising federal jurisdiction. It was submitted that s 596A was an inquisitorial or investigative exercise that did not concern some immediate right, duty or liability to be established by the determination of the Federal Court of Australia. Both the plurality and Gageler J (as his Honour then was), in a separate judgment (and for different reasons), did not accept that contention.
3. The plurality began its analysis by noting that the purpose of s 596A of the Corporations Act is to aid the statutory functions of a liquidator, namely, to "establish what are the assets of the corporation, including whether there are rights and obligations that could be realised, secured or litigated for the benefit of the unsecured creditors generally", and to "get in all of those assets".[38] The plurality continued (emphasis added):[39]

The s 596A power looks forward, using the concept of "examinable affairs" of the corporation, to the possibility that information gathered in the course of an examination under s 597 will support a claim for relief against the examinee or some other person. Section 596A looks forward to such a claim as a "matter": a controversy relating to the pecuniary rights or liabilities or wrongdoing of the corporation and the examinee or some other person.

. . . .

Put another way, the s 596A power is a procedure that gives a liquidator the right to seek to examine certain persons involved in the corporation about the affairs of that corporation and thereby seek to establish, and then enforce, a potential right to relief against those with liabilities to the corporation, including alleged wrongdoers. Although the application arose out of events that had already occurred, the claim - one of potential rights, liabilities or wrongdoing - was a controversy where rights and liabilities could be established by a determination of the court made in due course in possible further litigation by reference to legal rules, principles or standards. In that context, the Summons Order made by the Federal Court under s 596A was made in the exercise of judicial power.

1. The plurality held that the resolution of the "matter", that is, the application for a summons, "yields, as its immediate result, an order for examination with direct loss of privileges for the examinee the subject of the order", and that "alone . . . suffices to create the necessary "matter"'.[40]
2. The plurality found that the power conferred by s 596A of the Corporations Act is not incompatible with the judicial power of the Commonwealth:[41]

The s 596A power is not incompatible with, and does not fall outside, the exercise of the judicial power of the Commonwealth. The court, in exercising the s 596A power, is not involved in a fact‑gathering exercise or an investigative function divorced from a controversy. The making of a summons order is a procedure designed to lead to a controversy regarding potential rights and liabilities in possible further litigation. It is a procedure directed at the future exercise of judicial power, in aid of anticipated adversarial proceedings, analogous to other pre-trial procedures.

1. The limit of the power conferred by s 81 of the Bankruptcy Act, therefore, is that it may only be used as an aid to the statutory functions of the trustee in bankruptcy to the extent those functions relate to identifying what is or once was the property of the bankrupt, what has become of the property of the bankrupt once owned or controlled, and whether there are rights the trustee may exercise by action (if necessary) to recover such property or the value of such property.[42] The Court, therefore, must be satisfied, when an application for the issue, or for the discharge of a summons that has already been issued, is made, that the s 81 applicant:

(a) identifies the plausible existence of property that belongs, or which once belonged, to the bankrupt estate which, or whose value, may be recoverable by the trustee in bankruptcy, by action, for the benefit of the creditors of the bankrupt; and

(b) shows that the proposed examinee is a person whom it is reasonable to suppose may be able to provide information that may enable the trustee to determine whether such property does exist.

1. What I say in the preceding paragraph is consistent with what the courts have said about the exercise of the power conferred by s 81 of the Bankruptcy Act, as it existed before it was amended to its current form by s 38 of the Bankruptcy Amendment Act 1987 (Cth). I need only refer to two authorities. The first is the judgment of Lockhart J in Re CSIDEI; Ex parte Andrew,[43] where his Honour said that the purpose of s 81 is "to elicit information that may be relevant for the proper conduct of the bankruptcy and that may aid the process of finding and recovering assets available for distribution";[44] the power conferred by s 81 is a "very extraordinary power indeed, and it ought to be very carefully exercised";[45] an order under s 81 is not made as of course or right;[46] when considering whether to make an order considerable weight must be given to the views of the trustee "as it is he who is . . . conversant with the problems that exist in relation to the affairs of the bankrupt and the information that is necessary";[47] in the exercise of the power the court or the Registrar must "be astute to prevent any oppressive, vexatious or unfair use of this extraordinary process";[48] and "[p]roper material must be adduced to enable the court or the registrar to decide whether it is an appropriate case for the exercise of the power".[49]
2. The second authority is Karounos v Official Trustee where the Full Federal Court stated a number of principles in relation to s 81 which include the following:[50]

The summons itself should be expressed in terms which make the intended areas of inquiry as clear as the circumstances of the case permit, and which specify as clearly as possible any books and records which the person summonsed has to produce: see Re Andrews (supra) at 186-187.

1. The extent to which the Court must be satisfied of the plausible existence of property that belongs, or once belonged, to the bankrupt's estate which, or whose value, may be recoverable by the trustee in bankruptcy for the benefit of the creditors of the bankrupt, will be influenced by the fact that a s 81 applicant will often have little information beyond that which suggests potential lines of inquiry in relation to the existence of such property, and the possibility that the examinee is in possession of some information, including documents, that may assist the trustee in bankruptcy in pursuing those inquiries. It is the existence of evidence that suggests potential lines of inquiry in relation to the identification of property that belongs or which once belonged to the bankrupt's estate, and the existence of a person or persons whom it is reasonable to suppose may be able to provide information that will enable the trustee in bankruptcy to pursue those lines of inquiry, that enlivens and justifies the exercise of the power conferred by s 81 of the Bankruptcy Act to issue a summons directed to such person.
2. In his counsel's further written submissions, the Trustee submits that, as a matter of law, the articulation of, or relevance of any cause of action that may be available to a trustee in bankruptcy is not required to be demonstrated as part of any opposition to an application to discharge a summons.[51] So much may be accepted. That, however, is a different proposition to its being necessary that a s 81 applicant, when applying for, or defending an application to discharge, a summons, show the plausible existence of property in relation to which the trustee may potentially have rights.
3. A potential consequence of the High Court having held in Palmer that the making of an order under s 596A of the Corporations Act constitutes the exercise of the judicial power of the Commonwealth, is that to the extent s 81(1) of the Bankruptcy Act purports to authorise a Registrar to make an order to summon a person, s 81(1) impermissibly purports to do so because a Registrar is not a judge appointed pursuant to s 72 of the Constitution. That does not mean that a Registrar could not make an order under s 81; it would be open to delegate to a Registrar the power a judge of the Federal Circuit and Family Court of Australia (Division 2) (this Court) or of the Federal Court of Australia has under s 81(1) of the Bankruptcy Act, subject to the protections the High Court identified in Harris v Caladine.[52]
4. It is unnecessary to decide whether s 81(1) of the Bankruptcy Act impermissibly purports to vest judicial power in a Registrar. For reasons that will become apparent shortly, the nature of this Court's jurisdiction, which Ms Anstee has engaged by applying to discharge or set aside the examination summonses, is a jurisdiction to consider de novo whether the Trustee has satisfied the express and implied conditions for making an order under s 81(1) of the Bankruptcy Act.

1. Ms Anstee does not in her written submissions identify the source of power on which she relies for applying to set aside the summons issued to her, or the summonses issued to CBA, WBC, and Mr Rodgers. The source of power, however, is contained in r 6.16(1) of the Bankruptcy Rules, which provides:

(1) If an examinable person is served with a summons under subsection 81(1) of the Bankruptcy Act for examination, the person may apply for an order to discharge the summons by filing:

(a) an interim application in accordance with Form B3, in the proceeding in which the summons was issued; and

(b) an affidavit setting out the grounds in support of the application.

1. Subrule 6.16(4) provides that the order to discharge the summons may be made by the Court or a Registrar. Given, as I have already noted, that the issuing of a summons pursuant to s 81(1) of the Bankruptcy Act is an exercise of judicial power, it may be that r 6.16(4) is beyond power unless, at least, there has been a delegation of the power a Judge of this court or of the Federal Court of Australia has to discharge a summons, and there is a right of review of the exercise by a Registrar of such delegated power. Whether r 6.16(4) is beyond power does not matter, however, because in Karounos the Full Federal Court said that, on an application to discharge a summons:[53]

the court must consider afresh, on the material before it, whether the summons should be set aside or adjourned to a more convenient time. It is not merely deciding whether, on the material before the Registrar, he correctly exercised his discretion.

1. In effect, therefore, on an application made under r 6.16(1) of the Bankruptcy Rules for an order discharging a summons that has been issued pursuant to s 81(1) of the Bankruptcy Act, and assuming such application is made to a Judge of this Court, the Judge must consider de novo the question whether the preconditions for issuing a summons under s 81(1) of the Bankruptcy Act have been satisfied. That means that on an application to discharge a summons the Trustee must adduce the evidence that r 6.12(3) of the Bankruptcy Rules requires a s 81 applicant to file on an application for a summons under s 81(1) of the Bankruptcy Act.
2. The Trustee has not adduced any evidence on the hearing of Ms Anstee's application; although it is the case that the Trustee filed and relied on an affidavit in support of his application for the issue of the summonses. That affidavit is not before me because it appears the Trustee submitted the affidavit in accordance with r 6.12(6) of the Bankruptcy Rules. Ms Anstee, however, has filed evidence, and the Trustee relies on that evidence in the application before me.

DOES MS ANSTEE HAVE STANDING TO APPLY TO DISCHARGE A SUMMONS ISSUED AGAINST OTHER PERSONS?

1. In their initial written and oral submissions, the Trustee and Ms Anstee assume that Ms Anstee has standing to apply to set aside, not only the summons addressed to her, but also the summonses addressed to CBA, WBC, and Mr Rodgers. That assumption appears to be contrary to r 6.16(1) of the Bankruptcy Rules, which confers on the examinable person on whom a summons has been served the ability to apply to discharge the summons; r 6.16(1) does not confer on an examinable person the right to apply to discharge a summons served on another examinable person.
2. In the morning of 2 June 2025 I directed my Associate to send the following email to the parties:

His Honour invites the parties to make submissions on whether Ms Anstee has standing to apply for an order to discharge the summonses issued against the Commonwealth Bank of Australia, the Westpac Banking Corporation, and Mr Kevin McMaster Rodgers. The question arises because r 6.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy Rules) 2021 (Cth) appears to confer the right to apply to discharge a summons to the examinable person who is served with the summons.

His Honour would appreciate the parties' submissions by 1.00 pm on 4 June 2025, or at such later time as the parties may reasonably request.

1. The Trustee responded with written submissions by way of an email sent on 3 June 2025. The Trustee submitted that Ms Anstee does not have standing to apply to set aside the summonses issued to CBA, WBC, and Mr Rodgers. The Trustee relies on the text of r 6.16(1) of the Bankruptcy Act which, the Trustee submits, makes it clear that it is only the person of whom a summons has been served who can apply for the discharge of the summons; r 6.16(1) does not empower a person to apply to discharge a summons that has been served on another person. The Trustee submits that the judgment of Yates J in Roufeil (Trustee), in the matter of Tarrant (Bankrupt) v Tarrant (Bankrupt), is relevant.[54] I do not consider that case to be relevant because it concerned a challenge to an order for production, not to a summons.
2. Ms Anstee provided written submissions on 4 June 2025. Ms Anstee submits she has standing because the summonses issued to CBA and WBC relate to her accounts; and this should be sufficient to "enliven a standing at common law, if not by statute". Ms Anstee further submits that the Rodgers Summons also calls for documents that relate to Ms Anstee, as does a summons to Mr Davis (which Ms Anstee does not seek to discharge); and this is sufficient to give Ms Anstee standing. Ms Anstee also relies on r 2.03 of the Bankruptcy Rules, which provides that the Court may grant a person leave to be heard in a proceeding; and also on s 30 of the Bankruptcy Act.
3. The text of r 6.16(1) of the Bankruptcy Rules limits the class of persons who may apply for the discharge of a summons to the persons on whom a summons is served. If the framers of the Bankruptcy Rules intended persons other than those on whom a summons was served to have a right to apply, the Bankruptcy Rules would have included a provision permitting this.[55] Moreover, r 6.16(1)'s restricting the right to apply to discharge a summons to persons served with a summons is consistent with the nature of a summons. It is a court order; and as with other court orders, persons not bound by the summons have no standing to disturb its legal effect. Even if, however, Ms Anstee does have standing to apply to set aside the summonses issued to CBA, WBC, and Mr Rodgers, Ms Anstee would have required to join CBA, WBC, and Mr Rodgers to her application because those persons are bound by the summons issued against them. Ms Anstee has not done so.
4. Rule 2.03 of the Bankruptcy Rules does not assist Ms Anstee. Having made an application in relation to the summons that was addressed to her, her only interest under r 6.16(1) to be heard in the proceeding relates to that application. There is no other application that is currently before the Court in relation to which she may seek to be heard. Section 30 of the Bankruptcy Act also does not assist Ms Anstee. That provision is limited to a proceeding that is properly before the Court; it does not authorise persons not bound by an order to apply to discharge it.
5. It is conceivable that Ms Anstee could have sufficient interest to apply to the Federal Court of Australia for remedies under s 39B(1) of the Judiciary Act 1903 (Cth) if the Registrar's orders issuing the summonses to CBA, WBC, and Mr Rodgers are affected by jurisdictional error. Ms Anstee, however, has not made any such application.
6. I am therefore satisfied that Ms Anstee has no standing to apply for an order to discharge the summonses issued against CBA, WBC, or Mr Rodgers; and even if she did, it would not be open to her to press her application without joining each of CBA, WBC, and Mr Rodgers as parties to her application.

1. The summons issued against Ms Anstee (Anstee Summons) requires her to come before a Registrar to give evidence about the "examinable affairs" of Mr Anstee, and to produce the following documents:
   1. All books and documents in relation to Twooz between 20 September 2018 to 30 June 2023 including but not limited to:

(i) Financial statements;

(ii) Management accounts;

(b) Bank statements;

1. All books and documents recording communications with Shane Brown between 20 September 2018 being the date of incorporation of Twooz to 30 June 2023.

2. All bank statements for accounts in your name or under your control and into which funds from the proceeds of the sale of The Maltings or the payment of the Mortgages were transferred in respect of the period 1 January 2019 to 30 June 2023.

3. All books and documents recording communications with any of the following parties:

(a) The Bankrupt

(b) Shane Brown

(c) Twooz

(d) CKM;

(e) SFI;

(f) Stacks;

(g) Clayton Davis

in respect of:

(h) The purchase of The Maltings by Velowing and the Bankrupt in around 2000;

(i) The Maltings Mortgages;

(j) The incorporation of Twooz;

(k) The Maltings Mortgages Transfer;

(l) The sale of The Maltings;

(m) The creation of any trusts of which Twooz is or was a trustee;

(n) All amounts received on and from or as a result of or in connection with the sale of The Maltings or the amounts owing to Twooz as a result of The Maltings Mortgages Transfer; and

(o) The application of the funds received on and from or as a result of or in connection with the sale of The Maltings or the amounts owing to Twooz as a result of The Maltings Mortgages Transfer; and

(p) Your income tax returns for the last 10 years.

1. In her amended interim application Ms Anstee relies on the following grounds for discharging the Anstee Summons:

(a) the summons does not identify the subsection of s 81 pursuant to which it was issued;

(b) the Trustee failed to clearly identify the proposed areas of inquiry to which the books sought to be produced relate;

(c) the books the summons seeks to be produced do not relate, or otherwise are not limited to the examinable affairs of Mr Anstee;

(d) the summons is insufficiently clear, and is oppressive vexatious, and otherwise objectionable;

(e) the summons was "filed contrary to an" undertaking the Trustee, in his capacity of liquidator of Oneoz on 27 January 2021.

1. Ms Anstee submits there is no evidence Mr Anstee had any relationship with Twooz; the evidence goes no further than showing Twooz was the trustee of an "entity which acquired mortgages over a property owned by the Bankrupt".[56]
2. In his counsel's written submissions, the Trustee submits that Twooz was a company associated (according to Ms Anstee) with Ms Anstee's son, Matthew, and Matthew's business partner, Shane Brown, and trustee of a trust of which Ms Anstee is the ultimate beneficiary. The Trustee submits that "[e]xploring this issue is clearly within the examinable affairs of the Bankrupt".[57]
3. The Trustee does not explain in what sense the books concerning Twooz the Anstee Summons requires Ms Anstee to produce relate to Mr Anstee or to any dealings, transactions, property, or affairs of Mr Anstee. The Trustee does not submit that Twooz is an associated entity of Mr Anstee. Further, paragraphs 1 and 2 do not restrict itself to documents that are in Ms Anstee's possession. The Trustee similarly does not explain how communications between Ms Anstee and Mr Brown relate to Mr Anstee or to his examinable affairs.
4. I am not satisfied that paragraphs 1 and 2 of the Anstee Summons are limited to documents that relate to Mr Anstee or to his examinable affairs.

1. Ms Anstee submits these paragraphs are "exceptionally broad and seek a vast array of documents and communications with respect to distribution of funds to Ms Anstee, which the Bankrupt has no recourse to".[58] The Trustee submits that Ms Anstee does not depose that she will have difficulties in finding and collecting the documents called for by paragraphs 3 and 4.[59]
2. I am satisfied that the documents specified by paragraphs 3 and 4(h), (i), (k), (l) (n), and (o) of the Anstee Summons relate to the examinable affairs of Mr Anstee. They relate to a property, The Maltings, in which Mr Anstee had an interest, and transactions relating to that property. I am also satisfied that their production would not be oppressive. I am not satisfied, however, that the documents described in paragraphs 4(j), (m), or (p) relate to Mr Anstee or to his examinable affairs. The documents specified by paragraphs 4(j) and (m) relate to Twooz; and the documents specified by paragraph 4(p) relate solely to Ms Anstee's tax returns.

1. I propose to make an order discharging the Anstee Summons insofar as it requires Ms Anstee to produce the documents specified in paragraphs 1, 2, and 4(j), (m), or (p). I will also make an order similar to the order Cooper J made in Osenton v Ivor Worrell and Alcan Australia Ltd[60] that the Anstee Summons be amended by adding the words "as are in your possession" after the words: "You are required to bring with you the books listed on the next page".

1. The summons issued against CBA (CBA Summons) requires CBA, by its proper officer, to attend before a Registrar to give evidence about the "examinable affairs" of Mr Anstee, and to produce the following documents:
   1. In relation to Bankrupt's account numbered 062-511, 10311295 from the period of 7 January 2019 to 30 October 2020, all documents including (but not limited to):

(a) Transaction Vouchers; and

(b) Trace showing the account name, BSB and account number of the source or destination of funds;

which show the source or destination of funds for the following transactions:

1. In relation to the mortgage held by Commonwealth Bank of Australia in relation to 8 Wombeyan Caves Road, Woodlands, NSW, 2575 including (but not limited to):

(a) Mortgage documents;

(b) Loan agreements;

(c) Loan application forms; and

(d) Supporting documentation; as well as

(e) Copies of loan account statements for the period from commencement to 31 December 2023.

1. In relation to the Bankrupt's account numbered 062-799, 10974542 from the period of 31 October 2017 to 26 March 2019, all documents including (but not limited to):

(a) Transaction Vouchers; and

(b) Trace showing the account name, BSB and account number of the source or destination of funds;

which show the source or destination of funds for the following transactions:

1. In relation to the Bankrupt's account numbered 062-370, 725500109, from the period 26 March 2019 to 3 April 2019, all documents including (but not limited to):

(a) Transaction Vouchers; and

(b) Trace showing the account name, BSB and account number of the source or destination of funds;

which show the source or destination of funds for the following transactions:

1. In relation to the account numbered 062-799, 10974526 for the period from 1 January 2019 to date all documents including (but not limited to):

(a) bank statements and

(b) account application forms

1. In relation to the account numbered 062-799, 10974526, all documents including (but not limited to):

(a) Transaction Vouchers; and

(b) Trace showing the account name, BSB and account number of the source or destination of funds;

which show the source or destination of funds for the following transactions:

1. Ms Anstee submits the CBA Summons is misleading because it incorrectly refers to the accounts as being those of "the Bankrupt"; and in any event, the documents called for by the CBA Summons do not relate to Mr Anstee or to his examinable affairs.[61] The Trustee accepts the CBA Summons incorrectly refers to the "Bankrupt's" accounts, but otherwise submits that compliance with the CBA Summons "is not otherwise said to be oppressive, vexatious , or and abuse of process" [sic].[62]
2. I have held Ms Anstee does not have standing to apply to set aside the CBA Summons. If, however, Ms Anstee did have standing, I would have concluded that I am not satisfied that the documents the CBA Summons specifies wholly relate to Mr Anstee or to his examinable affairs. It may be possible to establish that some of the documents and perhaps all of them relate to the sale of The Maltings. As McDonald J held in Psomas, however, to be valid, a summons must describe the categories of documents it seeks in terms that expressly reflect the limits of the authority conferred by s 81 of the Bankruptcy Act.

1. The summons issued against WBC (WBC Summons) requires WBC, by its proper officer to attend before a Registrar to give evidence about the "examinable affairs" of Mr Anstee, and to produce the following documents:
   1. In relation to Ms Lynette Anstee's account numbered 732-716, 657191 ("the WBC Account") from the period of 26 March 2019 until 31 December 2023, all documents including (but not limited to):

(a) Transaction vouchers; and

(b) Trace showing the account name, BSB and account number;

which show the source or destination of funds for the transaction which occurred on 26 March 2019, in which $570,000.00 was paid into a Commonwealth Bank of Australia account numbered 062-799, 10974526.

1. In relation to Ms Lynette Anstee's TFR Westpac eSaver account from the period of 1 March 2019 until 31 December 2023, all documents including (but not limited to):

(a) Transaction vouchers; and

(b) Trace showing the account name, BSB and account number.

1. Ms Anstee appears to submit that the documents do not relate to the examinable affairs of Mr Anstee. The basis of that submission is the assertion that the bank accounts are not those of Mr Anstee, and no proceeds of sale went into Mr Anstee's bank account.[63] The Trustee, on the other hand, submits that the bank accounts are relevant to the sale of the Maltings.[64]
2. I have held that Ms Anstee does not have standing to apply to set aside the WBC Summons. If, however, Ms Anstee did have standing, I would have concluded that I am not satisfied that the documents the WBC Summons specified wholly relate to Mr Anstee or to his examinable affairs. It may be possible to establish that some of the documents and perhaps all of them relate to the same of the sale of The Maltings. As McDonald J held in Psomas, however, to be valid, a summons must describe the categories of documents it seeks in terms that expressly reflect the limits of the authority conferred by s 81 of the Bankruptcy Act.

1. The summons issued against Mr Rodgers (Rodgers Summons) requires Mr Rodgers to attend before a Registrar to give evidence about the "examinable affairs" of Mr Anstee, and to produce the following documents:

1. In relation to WVM [that is, Willow Vale Meadows Pty Ltd] or The Property [that is 5 Allambie] during the period 1 January 2010 to date, copies of all documents recording, referring to or concerning the Bankrupt or Ms Lynette Anstee, including (but not limited to):

(a) Those which show the source of funds used to purchase The Property including (but not limited to):

(i) Bank Statements or records of transactions;

(ii) Tax returns; and

(iii) Payslips.

(b) Those which record or show the Bankrupt to be the recipient of (or copied with) the development application or other documents in relation to The Property including (but not limited to):

(i) Application forms;

(ii) Architectural plans;

(iii) Stormwater and civil works plans;

(iv) Cost estimate report; and

(v) Consultant reports;

(c) Those regarding occupation of The property including (but not limited to):

(i) Rental agreements;

(ii) Tenancy agreements;

(iii) Correspondence for occupancy fees; and

(iv) Bank Statements or records of transactions showing amounts paid by any person in respect of the occupation and to whom.

(d) Those regarding the revenue and costs of owning The property in particular payments made in regard to including (but not limited to):

(i) Interest;

(ii) Rates;

(iii) Land taxes;

(iv) Insurance premiums;

(v) The costs of repairs;

(vi) Winery and vineyard operations; and

(vii) Air BNB or the like operations.

1. Ms Anstee submits that the Rodgers Summons calls for documents in relation to 5 Allambie, being a property Mr Rodgers owns, and at which Mr Anstee resides; and it is entirely unclear how architectural or stormwater plans are said to relate to Mr Anstee or to his examinable affairs.[65] The Trustee submits that the documents relate to Mr Anstee's examinable affairs because he has given 5 Allambie as his address and he and Ms Anstee live there rent free.
2. I have held Ms Anstee does not have standing to apply to set aside the Rodger Summons. If she did have standing, however, I would not have discharged the Rodgers Summons because I would be satisfied there is a sufficient basis for rendering it plausible that Mr Anstee has some interest in 5 Allambie, and that the documents specified in the Rodger Summons relate to 5 Allambie and the plausible possibility of his having an interest in that property. I would, however, have ordered that the Rodger Summons be amended to include words that would have made it clear that Mr Rodgers would only be required to produce documents in his possession.

1. As I have already noted, Mr Anstee has deposed that he produced to Mr Prentice at their meeting on 19 September 2005 a statement of affairs that Mr Anstee had completed; Mr Anstee signed the completed statement of affairs; and, at the direction of Mr Prentice, Mr Anstee posted the original to ITSA.
2. Mr Anstee was not cross-examined on his affidavit. Even so, I am not bound to,[66] and I do not, accept his evidence.

(a) Although in his interview with Ms Wilson on 8 December 2021 Mr Anstee said that he believed he had previously provided a completed SOA to Mr Prentice, he did not say that he had posted any SOA to ITSA.

(b) There is the relatively contemporaneous statement contained in the RTC (which is dated 23 November 2005) that, at a meeting held on 19 September 2005, Mr Anstee told Mr Prentice that he would complete and file his SOA, but in the meantime Mr Anstee provided to Mr Prentice "an almost complete" SOA, which Mr Prentice copied, and that Mr Anstee further said he had "not yet filed the final and executed version with the Official Receiver".

(c) In the RTC Mr Prentice stated that, despite his demands, Mr Anstee had not completed and filed his SOA.

(d) Mr Anstee has not himself applied for an order under s 33A(2) of the Bankruptcy Act, but instead filed a BF on 30 November 2022. Mr Anstee has not provided an explanation why he did not apply for an order under s 33A, but instead he purported to complete and file a BF.

(e) Mr Anstee does not in his affidavit deny or otherwise address the references in the RTC to Mr Anstee's not having filed an SOA, despite Mr Prentice's demands that he do so. Further, Mr Anstee does not say whether he had received the RTC and had become aware of references in the RTC to his not having filed an SOA and if so whether he took any steps either to disagree with such statements or otherwise take steps to confirm that he had indeed filed his SOA.

1. In any event, and as the Trustee submits, whether Mr Anstee has been discharged from bankruptcy, or whether an order is or should be made under s 33A(2) of the Bankruptcy Act, has no bearing on whether any of the summonses should be set aside; and that is because s 81(1) provides that an application to summon a person may be made "before or after the end of the bankruptcy".

APPLICATION FOR ORDER UNDER S 33A OF THE BANKRUPTCY ACT

1. Ms Anstee applies for an order under s 33A(1) of the Bankruptcy Act, which provides:

If the Court is satisfied that a person believed on reasonable grounds that a statement of affairs that relates to the person's bankruptcy was filed for the purposes of section 54, 55, 56B, 56F or 57 at a time before it was actually filed, the Court may order that the statement of affairs is to be treated as having been filed at a time before it was actually filed.

1. It is necessary to note that it is Ms Anstee, not Mr Anstee, who applies for an order under s 33A. Even if Ms Anstee has standing to apply for an order under s 33A, the person who would be directly affected by the order, Mr Anstee, would need to be a necessary party. Ms Anstee has not sought to join Mr Anstee as a necessary party; and for that reason alone I would decline to make an order under s 33A of the Bankruptcy Act.
2. Even if Mr Anstee were a party, given I have not accepted Mr Anstee's evidence in relation to the SOA in 2005, there would be no basis on which I could find that Mr Anstee believed, or believed on reasonable grounds, that he had filed his SOA in 2005, or that the Official Receiver received by post a completed SOA; and for that reason I would have dismissed Ms Anstee's application for an order under s 33A of the Bankruptcy Act.

1. The undertaking on which Ms Anstee relies if the undertaking the Trustee gave in his capacity of liquidator of Oneoz; and the Trustee, in that capacity, gave the undertaking to Matthew, not to Mr Anstee. The undertaking is as follows:

"I, Giles Geoffrey Woodgate in my capacity as Liquidator of Oneoz Pty Ltd (In Liquidation) ACN 152 212 425 (Oneoz), undertake in [sic] Matthew Anstee that I will not be involved in your affairs or the affairs of Kate Alvis, Lynette Anstee, Lariss Burne and any entities associated with you or Ms Alvis, Ms Anstee or Ms Burne only insofar as those affairs relate to the claim by Oneoz against Shane Brown and Martha Street Developments Pty td [sic] (Receiver & Manager Appointed) ACN164 809 090."

1. On no reasonable reading can this undertaking be construed to constitute an undertaking by the Trustee in his capacity of trustee in bankruptcy of Mr Anstee's estate.

1. At the hearing it was submitted on behalf of Ms Anstee there is no evidence there are creditors of Mr Anstee's estate. I do not accept that submission. The RTC refers to creditors, these being the petitioning creditor (Biron Capital Limited), "Takaran 3 Pty Limited Loan to Bassoak Pty Limited (Receivers and Managers Appointed)", and "Clive Lucas Stapleton & Partners". Further, on 8 December 2021 Mr Anstee told Ms Wilson that he had started to complete the BF online but he required further information "from his creditors to confirm his debts to complete the form", and on 22 December 2021, Mr Anstee informed Ms Wilson that he had not yet finished completing the BF "as he was still awaiting information from creditors". Even if, however, there were no present evidence of creditors, that would not mean there are no creditors. Whether there are creditors of Mr Anstee's estate, and the extent of such creditors, are matters that would be the task of the Trustee to determine in the course of his administration of Mr Anstee's bankrupt estate.

(a) pursuant to r 6.16(1) of the Bankruptcy Rules, the Anstee Summons be discharged to the extent it requires the production of the documents specified in paragraphs 1, 2, and 4(j), (m), or (p) of the schedule to the Anstee Summons;

(b) the Anstee Summons be amended to make it clear it seeks the production of books in the possession of the addressee; and

(c) Ms Anstee's interim application be otherwise dismissed.

1. As for costs, given Ms Anstee has substantially failed in her application, I propose to order that Ms Anstee pay the Trustee's costs; but I will reserve to Ms Anstee and the Trustee liberty to apply within 14 days after I pronounce orders for an order varying or discharging the order for costs I propose to make.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Affidavit L M Anstee 15.04.2025, [10].

[2] Affidavit L M Anstee 15.04.2025, [12].

[3] Affidavit L M Anstee 15.04.2025, [13].

[4] Affidavit L M Anstee 15.04.2025, [15]-[16].

[5] Affidavit L M Anstee 15.04.2025, [17]-[19].

[6] Affidavit L M Anstee 15.04.2025, [22]; Exhibit LMA-1.

[7] Affidavit L M Anstee 15.04.2025, [23].

[8] Affidavit L M Anstee 15.04.2025, [24], [26].

[9] Affidavit L M Anstee 15.04.2025, [27], [28].

[10] Affidavit L M Anstee 15.04.2025, [31]; Exhibit LMA-1, tab 2.

[11] Affidavit L M Anstee 15.04.2025, [32].

[12] Affidavit L M Anstee 12.05.2025, [6], [7].

[13] Affidavit L M Anstee 12.05.2025, [7].

[14] Affidavit L M Anstee 15.04.2025, [40].

[15] Affidavit L M Anstee 15.04.2025, [41].

[16] Affidavit L M Anstee 15.04.2025, [42].

[17] Affidavit L M Anstee 15.04.2025, [43]-[45].

[18] Affidavit L M Anstee 15.04.2025, [47]-[50].

[19] Affidavit L M Anstee 15.04.2025, [52]-[56].

[20] Affidavit L M Anstee 15.04.2025, [57].

[21] Affidavit L M Anstee 15.04.2025, [61]-[63].

[22] Affidavit L M Anstee 15.04.2025, [63].

[23] Affidavit L M Anstee 15.04.2025, [65]- [67].

[24] Affidavit L M Anstee 15.04.2025, [67]; Exhibit Bundle LMA-1, tab 6, pages 26, 27.

[25] Affidavit L M Anstee 15.04.2025, Exhibit Folder LMA-1, pages 55-60.

[28] R v NM [2012] QCA 173, at [23] (Fryberg J).

[29] Two meanings of "about" given in the Macquarie Dictionary Online (accessed on 28 May 2025) includes "connected with", and "somewhere near or in"; and one set of meanings given in the Oxford English Dictionary (accessed on 28 May 2025) are "concerning, regarding, with regard to, in reference to".

[30] Psomas (Trustee), in the matter of Moran (Bankrupt) [2024] FCA 1259, at [23].

[31] Smorgon v Federal Commissioner of Taxation (1979) 143 CLR 499.

[32] Smorgon v Federal Commissioner of Taxation (1979) 143 CLR 499, at pages 537-538.

[33] Smorgon v Federal Commissioner of Taxation (1979) 143 CLR 499, at page 525.

[34] Psomas (Trustee), in the matter of Moran (Bankrupt) [2024] FCA 1259, at [33].

[35] Psomas (Trustee), in the matter of Moran (Bankrupt) [2024] FCA 1259, at [23].

[36] Psomas (Trustee), in the matter of Moran (Bankrupt) [2024] FCA 1259, at [23].

[37] Palmer v Ayres [2017] HCA 5.

[38] Palmer v Ayres [2017] HCA 5, at [29].

[39] Palmer v Ayres [2017] HCA 5, at [30], [31].

[40] Palmer v Ayres [2017] HCA 5, at [33].

[41] Palmer v Ayres [2017] HCA 5, at [36].

[42] Bankruptcy Act, s 19(1).

[43] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381.

[44] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 385.

[45] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 386. The quoted words are those of Jessell MR in Ex parte Willey; Re Wright [1883] UKLawRpCh 78; (1883) 23 Ch D 118 at page 128.

[46] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 386.

[47] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 387.

[48] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 387.

[49] Re CSIDEI; Ex parte Andrew [1979] FCA 87; (1979) 28 ALR 381, at page 388.

[50] Karounos v Official Trustee [1988] FCA 180; (1988) 19 FCR 330, at page 335.

[51] Applicant's Further Submissions Pursuant to directions of Judge Manousaridis 1 May 2025 [sic], [12].

[52] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84.

[53] Karounos v Official Trustee [1988] FCA 180; (1988) 19 FCR 330, at page 336.

[54] Roufeil (Trustee), in the matter of Tarrant (Bankrupt) v Tarrant (Bankrupt) [2018] FCA 1616.

[55] Compare r 24.15(1) of the Federal Court Rules 2011 (Cth) which confers a right on a party "or any person having sufficient interest" to apply to set aside a subpoena.

[56] Written Submissions - Lynette Mavis Anstee, [49(a)(i), (ii)].

[57] Applicant's Submissions on Amended Interim Application filed for Lynette Anstee on 1 May 2025, [24], [25].

[58] Written Submissions - Lynette Mavis Anstee, [49(a)(iii)].

[59] Applicant's Submissions on Amended Interim Application filed for Lynette Anstee on 1 May 2025, [26].

[60] Re Cheryl Kathleen Osenton Ex Parte: Cheryl Kathleen Osenton v Ivor Worrell and Alcan Australia Ltd [1995] FCA 1105.

[61] Written Submissions - Lynette Mavis Anstee, [49(b)].

[62] Applicant's Submissions on Amended Interim Application filed for Lynette Anstee on 1 May 2025, [27], [28].

[63] Written Submissions - Lynette Mavis Anstee, [49(c)].

[64] Applicant's Submissions on Amended Interim Application filed for Lynette Anstee on 1 May 2025, [29].

[65] Written Submissions - Lynette Mavis Anstee, [49(d)].

[66] "A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of "actual persuasion" which is required before a fact may be found." -GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, at [60] (Kiefel CJ, Gageler and Jagot JJ).