Bagshaw, Leith Gordon v Phillip Crawford Acting as Agent/Or York, Henry Davis

[1997] FCA 82

NOT FOR GENERAL DISTRIBUTION
                 NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )         No NG 54 of 1997
GENERAL DIVISION                 )

BETWEEN:

LEITH GORDON BAGSHAW
  Applicant

AND:

PHILLIP CRAWFORD ACTING AS AGENT/OR HENRY DAVIS YORK
                   First Respondent

WESTPAC LIMITED
                  Second Respondent

WARD AND PARTNERS ACTING AGENTS/OR FOR THE FIRST RESPONDENT
                   Third Respondent

JEFFERSON AND STEVENS AS TRUSTEE FOR LEITH GORDON BAGSHAW
                  Fourth Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:13 February 1997

REASONS FOR JUDGMENT
  (ex tempore)
In this proceeding the first and second respondents have moved, by notice of motion filed on 13 February 1997, for an order that the proceeding be struck out, or alternatively dismissed, as against them.  Only the applicant is named as respondent to the motion.  The power to order summary dismissal is found in O 20 r 2 of the Federal Court Rules and the power to strike out pleadings is found in O 11 r 16 of those Rules.
Mr Bagshaw, the applicant, appears in person.  The title to the proceeding set out above reflects the application which he filed on 23 January 1997 to commence the proceeding.  The first and second respondents are represented by Mr S A Gregory of counsel.  The third respondents have not been represented this morning.  The fourth respondents, the trustees in bankruptcy of the applicant, are represented by Mr S Burchett of counsel, although they have not yet been served with the application.  No relief is sought by Mr Bagshaw at this stage against the third or fourth respondents, although the application includes certain allegations against both.  The fourth respondents do not oppose the granting of the relief sought by the first and second respondents. 

It is common ground that the applicant is an undischarged bankrupt. Sub-section 58 (1) of the Bankruptcy Act 1966 ("the Act"), as is well known, vests the property of a bankrupt, including after-acquired property, in the Official Receiver or the other trustee of the estate of the bankrupt. See too s 116 of the Act. The word "property" is defined widely in s 5 of the Act. Mr Bagshaw has agreed that what he is seeking is, in effect, the restoration of real estate and a business, of which he claims to have been deprived by the wrongdoing of the first and second respondents.

In my opinion, a right of action of that kind is vested in his trustees in bankruptcy and the applicant does not have standing to enforce it.  Although authority is scarcely required, reference may be made to Wenlock v Moloney (1968) 111 Sol J 437 and Askew v Seventh Granite Pty Limited, unreported, Olney J, 1 September 1995. 

It should be noted that the applicant has indicated that a proceeding is being brought or is to be brought for removal of the present trustees.  He contends that they should be seeking to assert the right of action to which I have referred but have failed to do so. 

Another matter which should be mentioned is that the form of the originating process presents difficulty, no doubt because the applicant appears in person and has prepared the form of application himself.  It has been said on behalf of the first and second respondents that they would move for dismissal or striking out on other grounds if I were not to uphold the ground already mentioned.  Although my first impression is that other grounds may well be available for summary disposal of the proceeding, it is not necessary for me to deal with them.

I am satisfied that all three of paragraphs (a), (b) and (c) of sub-r 2 (1) of Order 20 are made out having regard to the fact that it is clear that the applicant himself cannot succeed on the present application.  The third and fourth respondents will have the benefit of the order for dismissal which will be of the proceeding generally, rather than only as against the first and second respondents.

The first and second respondents have asked for costs on an indemnity basis but I do not think that the evidence reveals conduct of the applicant calling for such an order.  There is not, for example, evidence that he commenced the proceeding despite advice that, as an undischarged bankrupt, he lacked standing.

The fourth respondents apply for costs.  I decline the application.  They have not been served with the originating process and are not parties to the motion.  As parties to the proceeding, they are entitled to be present but, in the circumstances, without benefit or detriment as to costs.

I order that:

1. the proceeding be dismissed generally;

1. the applicant pay the costs of the first and second respondents of the proceeding.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:20 February 1997

Heard:       13 February 1997

Place:       Sydney

Decision:     13 February 1997

Appearances:  The applicant appeared in person.

Mr S A Gregory of counsel instructed by Henry Davis York, solicitors, appeared for the first and second respondents (applicants on the motion)

Mr S Burchett of counsel instructed by M J Murray & Associates appeared for the fourth respondents (not parties to the motion)