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Abeyratne v Trkulja

Abeyratne v Trkulja

Case [1998] FCA 1676 18 December 1998

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William Bernard Abeyratne v. Milorad Trkulja (also known as Michael Trkulja) and ors
No. VG 7894 of 1998, FED No. 1676/98
Bankruptcy
(1998) 90 FCR 253

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

NORTH J

Bankruptcy - application by trustee to extend the time in which to elect to continue legal proceedings commenced by former bankrupt - whether the Court has power to extend the time for making an election - whether trustee has power to assign the cause of action to the former bankrupt - whether the cause of action was abandoned by operation of the Act which would render the election futile - discretionary factors considered - desire of former bankrupt to continue the litigation - circumstances leading to abandonment - policy of Bankruptcy Act 1966 (Cth) - merits of the action - delay - outstanding costs

Bankruptcy Act 1966 (Cth), ss 33(1), 60(3), 60(4)

Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109, considered

Re Collins; Ex parte Official Trustee in Bankruptcy v Bracher (1986) 10 FCR 209, considered

Nilant v Macchia (1997) 148 ALR 329, considered

Temsign Pty Ltd v Biscen Pty Ltd (1998) 157 ALR 83, considered

Re Nguyen; Ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320; 107 ALR 424, considered

Re Bankrupt Estate of Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 136 ALR 607, considered

Bennett v Gamgee (1877) 36 LT 48, cited

Re Summerhayes; Ex parte Official Assignee; McGinnis and Archer (Respondents) (1890) 1 BC (NSW) 24, cited

Re Kwok; Ex parte Rummel (1981) 61 FLR 336, cited

Theissbacher v MacGregor Garrick & Co [1993) 2 Qd R 223, cited

Stobbart v Mocnaj (1996) 16 WAR 318, cited

Somerset v Esanda Finance Corporation Ltd (Court of Appeal, Qld, 17 June 1992, unreported), cited

Kitson v Hardwick (1872) LR 7 CP 473, cited

Lines v Tana [1987] VR 641

MELBOURNE, 30 November-2 December 1998 (hearing), 18 December 1998 (decision)

#DATE 18:12:1998

Counsel for the Applicant: Mr G Hardy

Solicitors for the Applicant: Abbott Stillman & Wilson

Counsel for the First Respondent: Mr G Hardy

Solicitor for the First Respondent: Frank N Libman

Counsel for the Second Respondent: Mr D Masel

Solicitor for the Second Respondent: Victorian Government Solicitor

THE COURT ORDERS THAT:

1. The application for an extension of time within which to make an election under s 60(3) of the Bankruptcy Act 1966 (Cth) is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NORTH J

Before the Court is an application by William Bernard Abeyratne, the applicant, filed on 19 November 1998, in which he seeks orders extending the time in which he might elect to continue an action commenced in the Supreme Court of Victoria by Mr Milorad Trkulja, the first respondent, against the State of Victoria, the second respondent. Mr Abeyratne was the trustee of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abeyratne v Trkulja

Details

AGLC: Abeyratne, William v Trkulja, Milorad aka Michael Trkulja & Ors [1998] FCA 1676 ((1998) 90 FCR 253)
Case: [1998] FCA 1676
Decision Date: 18 December 1998

CaseChat Overview and Summary

The parties in this case were Abeyratne, the liquidator of a bankrupt estate, and Trkulja, a creditor of the bankrupt. The dispute involved the timing of an election by the creditor under section 60(3) of the Bankruptcy Act 1966 (Cth), which pertains to the preference payments made to the creditor. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the creditor's application for an extension of time to make an election regarding the preference payments was valid. The creditor had missed the statutory deadline by several months, and the court had to determine if the delay was justified under the circumstances. The creditor argued that the delay was due to a genuine misunderstanding of the legal requirements and that the delay did not prejudice the interests of the bankrupt's estate.

The court found that the creditor's delay was unreasonable and not excusable. The creditor had access to legal advice and had sufficient time to understand and comply with the statutory requirements. The court held that the creditor's delay in making the election prejudiced the interests of the bankrupt's estate, as it hindered the liquidator's ability to recover the preference payments. The court dismissed the application for an extension of time and ordered the creditor to pay costs. The court's decision emphasised the importance of timely compliance with statutory obligations in bankruptcy proceedings.

Orders

Orders of the court

1. The application for an extension of time within which to make an election under s 60(3) of the Bankruptcy Act 1966 (Cth) is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Abeyratne, William v Trkulja, Milorad aka Michael Trkulja & Ors [1998] FCA 1676 ((1998) 90 FCR 253)

Most Recent Citation

Trkulja v Google (No 4) [2011] VSC 560

Cases citing this decision · 15 of 15 shown

Wengel (Trustee), in the matter of Maroon, a bankrupt
[2024] FCA 921 Para 26

…end time is a broad discretionary power. It is unfettered and must be exercised with a view to doing justice between the parties: Abeyratne v Trkulja (1998) 90 FCR 253 at 262 (North J).…
Official Trustee in Bankruptcy, in the matter of the bankrupt estate of Crawford
[2022] FCA 657 Para 8

…etion is a wide one, which allows for a “…flexibility often necessary to achieve fairness in particular circumstances”: Abeyratne v Trkulja (1998) 90 FCR 253, 258C (North J).…
Young v Hughes Trueman Pty Ltd
[2017] FCA 470 Para 7

…The respondents relied on the decision of North J in Abeyratne v Trkulja [1998] FCA 1676; 90 FCR 253 in which his Honour expressed the view that the Court has the power to make such orders with a view to achieving fairness in the particular circumstances.…
Fewin Pty Limited v Prentice
[2016] FCA 1038 Para 7

…In Abeyratne v Trkulja (1998) 90 FCR 253 at 260, North J said, in considering a trustee’s application to extend the time in which to elect to continue legal proceedings commenced by the former bankrupt: …it would conduce to injustice if an abandonment which arose by mistake was treated in the same way as an abandonm…
Newman v Bain
[2013] FCA 558 Para 9

…The Trustee also relies upon the decision in Abeyratne v Trkulja (1998) 90 FCR 253 where it was held that, in the absence of any evidence in relation to the prejudice caused by delay of about one year, an extension of time would not be refused on the ground of delay alone. This, the Trustee submits, is a case which…
Newman v Bain
[2012] FMCA 629 Para 29

…scretion is an unfettered one. That is a point that is made explicitly in the decision of North J in the Federal Court of Abeyratne v Trkulja and Ors (1998) 90 FCR 253. It was a completely different factual situation in that Court. It was, in fact, an application of this nature to extend the time for the election af…
Trkulja v Google (No 4)
[2011] VSC 560 Para 1

…national Pty Ltd and Another v Telstra Corporation Ltd [1998] 4 VR 798, in which the plaintiff was the only moving appellant; Abeyratne v Trkulja (1998) 90 FCR 253; Trkulja v Ethnic Broadcasting Association of Victoria Ltd [2000] VSC 219; Trkulja v State of Victoria [2001] VSC 63; Trkulja v Morton [2005] FCAFC 259;…
Beames v State of Queensland
[2010] QSC 4

…) , s 188BB(3)(a), s188B(3)(b) Uniform Civil Procedure Rules 1999 (Qld), r 72(1), r 72(2), r 389(2) Abeyratne v Trkulja (1998) 90 FCR 253, cited Beames v Leader [2000] 1 Qd R 347, referred to Cummings v Claremont Petroleum NL (1996) 185 CLR 124, cited Daemar v Industrial Commission (NSW) [No 2] (1990) 22 NSWLR 178,…
McKinnon v Pattison
[2009] FCA 1421

…to McKinnon v Pattison [2009] FMCA 696 referred to McKinnon v Commonwealth Bank of Australia [2005] FCA 1898 referred to Abeyratne v Trkulja (1998) 90 FCR 253 referred to Vince v Sellers [2004] FMCA 564 discussed House v The King (1936) 55 CLR 499 referred to Draffin v Construction, Forestry, Mining and Energy Union [2009]…
Primelife Corporation Limited v Bufalo
[2008] FCA 1742 Para 5

…I acknowledge that others have construed their Honours’ joint reasons for judgment differently: see, for example, Abeyratne v Trkulja (1998) 90 FCR 253 at 259 (North J)) do I understand their Honours, in that passage, to have been intending to deal with the effect of the deemed abandonment on the cause of action whi…
Jandric v Jandric [No 2]
[2007] WASC 273 Para 20

…reach a concluded view, it would appear to have support from the decisions in Re Bankrupt Estate of Cirillo (1996) 65 FCR 576 and Abeyratne v Trkulja (1998) 90 FCR 253, which confirm that a trustee can assign to the bankrupt a cause of action arising before bankruptcy and vested in the trustee during the bankruptcy,…
Moore v Macks
[2007] FCA 10 Para 16

…ustee in bankruptcy even if the time limit of 28 days has expired: Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109; Abeyratne v Trkulja (1998) 90 FCR 253. For the purposes of this application, I will proceed on the assumption that the time can be extended even if the time for election has expired at the ti…
Wagner v Samootin
[2006] FMCA 688 Para 3

…on is a broad discretionary one which must be exercised with a view to doing justice between the parties: s.33(1)(c) of the Act; Aveyratn v Trkulja (1998) 90 FCR 253.…
Campbell v Metway Leasing Ltd
[2001] FCA 1311 Para 11

…h I acknowledge that others have construed their Honours’ joint reasons for judgment differently: see, for example, Abeyratne v Trkulja (1998) 90 FCR 253 at 259 (North J)) do I understand their Honours, in that passage, to have been intending to deal with the effect of the deemed abandonment on the cause of action w…
Re Carter; Sweeney v Millyard
[2000] FCA 1549 Para 18

…ficial Receiver (1981) 52 FLR 109 at 113; Re Collins; Ex parte Official Trustee in Bankruptcy v Bracher (1986) 10 FCR 209 at 213; Abeyratne v Trkulja (1998) 90 FCR 253; Brien v P & E Phontos Pty Ltd [1999] FCA 1072; Re Paterson; Ex parte Official Trustee [2000] FCA 116. The obiter observations of the Queensland Cour…

View all 15 citing cases →

Cases cited in this decision · 5 of 5 shown

Stobbart v Mocnaj
[1999] WASC 252

…Stobbart v Mocnaj (1996) 16 WAR 318, cited…
Nilant v Macchia
[1997] FCA 966

…Nilant v Macchia (1997) 148 ALR 329, considered…
Re Van Phat Nguyen Ex Parte Official Trustee in Bankruptcy
[1992] FCA 185

…Re Nguyen; Ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320; 107 ALR 424, considered…
Re Nguyen; Ex parte Official Trustee in Bankruptcy
[1992] FCA 150

…Re Nguyen; Ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320; 107 ALR 424, considered…
Re Faulkner; Ex parte Official Receiver
[1981] FCA 3

…Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109, considered…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
33(1), 60(3), 60(4) 4 mentions
Bankruptcy Amendment Act 1991 (Cth)
1 mention