B Pty Limited and Sykes and Anor

In the Family Court of Australia, B Pty Limited sought to set aside previous property settlement orders made between Ms Sykes and Mr Sykes, who was by then a bankrupt. B Pty Limited's standing to bring the application was based on a Deed of Assignment from the trustee in bankruptcy of Mr Sykes' estate, purporting to transfer rights to seek orders under sections 79 and 79A of the *Family Law Act 1975* (Cth). The respondents challenged the validity of this assignment, arguing that the applicant was not a "person affected" within the meaning of section 79A and that the right to bring such proceedings was not assignable.

The court was required to determine whether B Pty Limited was a "person affected" by the orders for the purposes of section 79A, whether the Deed of Assignment was legally effective to transfer the rights to bring proceedings under sections 79 and 79A, and whether the trustee in bankruptcy should be joined as an applicant. The applicant conceded it had no standing apart from the assignment, and the court agreed to consider the effectiveness of the assignment first, followed by the applicant's standing, and then the joinder of the trustee.

The court reasoned that the rights and entitlements of a trustee in bankruptcy under section 79A(5) of the *Family Law Act* are not property that vests in the trustee, but rather a statutory standing conferred by the Act. This standing is personal to the trustee and cannot be assigned to a third party like B Pty Limited. The court distinguished this from the assignment of the fruits of litigation, noting that section 79A does not confer an existing right but rather an entitlement to seek discretionary orders from the court. Therefore, the Deed of Assignment was ineffective to assign the applicant the entitlement to bring and maintain an application under section 79A.

Consequently, the court ordered that Mr Lane, the Trustee in Bankruptcy of Mr Sykes, be joined as an applicant to the proceedings. The applicant, B Pty Limited, was directed to file and serve an amended initiating application, and the respondents were to file and serve their response thereafter. The matter was listed for further directions.