Private Examinations

The Official Receiver or Trustee in Bankruptcy can proceed to court to obtain a court order requiring the bankrupt, their spouse, former spouse or third parties to attend court to be examined on oath and answer questions concerning the bankrupt’s affairs.

When a bankruptcy order has been made, the Official Receiver or Trustee can apply to the Court to privately examine any party prior to the bankrupt’s discharge, although they are able to obtain an order to examine the bankrupt at Court even after the bankrupt obtains his discharge, namely after one year of the bankruptcy order having been made.

The Court can, on an application made by the Official Receiver, order any person who has in their possession any property belonging to the bankrupt to deliver that property to the Official Receiver or Trustee. This includes any documentation which sheds light on the bankrupt’s affairs.  When a person fails to attend a private examination or the bankrupt is about to abscond to avoid examination, the Court may issue a warrant for his arrest.  The Court has power to order the bankrupt or any third party to deliver up any relevant property, including financial records relevant to the bankrupt.

Public Examinations

A public examination however only applies during the period of bankruptcy, normally one year from the date of the bankruptcy order and only applies to the bankrupt. This is to be contrasted with a private examination which may take place after the period of discharge and applies to third parties during the first year of bankruptcy.

We advise clients who are required to respond to requests made by their Trustee in Bankruptcy to co-operate by providing information or documentation concerning their financial affairs and dealings.  The Trustee in Bankruptcy is entitled to summon to appear before him certain persons who are able to provide information concerning the bankrupt’s affairs/properties.  This oral examination is conducted under oath and in open Court and if the person summoned to appear before the Bankruptcy Court does not provide the information or documentation sought, the Court may issue a warrant for his arrest and send the person to prison.  This extends to the bankrupt who fails to attend any public examination hearing ordered by the Court without providing a reasonable excuse, such as ill health.