Cockerill, Graham Thomas (A Bankrupt) v Westpac Banking Corporation

[1991] FCA 489

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IN THE FEDERAL COURT OF AUSTRALIA	)	No. NG 29 of 1991
NEW SOUTH WALES DISTRICT REGISTRY	1	I
GENERAL DIVISION	1

BETWEEN:	GRAHAM DOUGLAS COCKERILL. A BANKRUPT.
WITH THE CONSENT OF MR. ROBERT BURNS,
HIS TRUSTEE IN BANKRUPTCY. ARTHUR DAVID -
THOMAS DINGLE. A BANKRUPT, WITH THE CONSENT OF MR. ROBERT BURNS, HIS TRUSTEE IN BANKRUPTCY AND VALERIE DINGLE. A

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BANKRUPT. WITH THE CONSENT OF MR.
ROBERT BURNS. HER TRUSTEE IN BANKRUPTCY !_ .

Applicants

. .

AND: WESTPAC BANKING CORPORATIOQ

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDEq:	19 AUGUST 1991  , .
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   Unless a trustee or trustees of the estates of the present applicants becomes an applicant in these proceedings within two months of today's date, these proceedings stand dismissed.

2.    The costs of and incidental to the application for dismissal be reserved.

--	Settlement and entry of orders is dealt within in
Order 36 of the Federal Court Rules.

Note.

IN THE FEDERAL COURT OF AUSTRALIA	)	No. NG 29 of 1991
NEW SOUTH WATJES DISTRICT REGISTRY	1	l
GENERAL DIVISION	1

Applicants

AND: WESTPAC BANKING CORPORATION

Respondent

CORAM:	PINCUS J.
PLACE :	BRISBANE
DATE :	19 AUGUST 1991

REASONS FOR JUDGMENT

On 23 May 1991, I adjourned an application by the respondent for an order that these proceedings be dismissed. The ground taken was that all the applicants are bankrupts suing in respect of a cause of action which is vested in the trustee. I adjourned the application for the reason that, on the evidence, it was proposed to apply for annulment of the

bankruptcies, and that application might if successful have	produced the result that acquisition of the cause of action
would date back prior to the filing of the suit. I shall in these reasons give the parties the designations they have in the title to the proceedings.
The proposed applications for annulment were not made and other steps have been taken instead, with a view to achieving the appointment of a trustee who is willing to

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pursue the suit. The respondent has orally renewed its
application for dismissal.

It has been argued for the applicants that if the new trustee (Mr. Worrell) assumes office and is willing to carry the suit on, then he can simply be joined as an additional applicant: Emdeq v. carte (1881) 17 Ch.D. 169. In that case, Fry J. expressed doubt about the propriety of making an order joining the trustee as plaintiff in lieu of the bankrupt; the name of the trustee was added as plaintiff on the ground that that was a proper and convenient course.

Were it not for that decision, I should have been inclined to accede to the application for dismissal, but should Mr. Worrell become trustee - and it should be known fairly soon whether he will or not - then on the basis of the decision of Fry J. this suit might be kept alive, Mr. Worrell being joined as an additional applicant. Not without doubt, I shall proceed on the assumption that the practice adopted in Emdeq v. carte is defensible and will not immediately dismiss

the principal application.

So that the matter is resolved without too much further delay, however, I propose to make an order that unless a trustee or trustees of the estates of the present applicants becomes an applicant in these proceedings within two months of today's date, these proceedings shall stand dismissed. The costs will be reserved.

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I certify that the two

preceding pages are a true
copy of the reasons for

judgment herein of his

Honour Mr. Justice Pincus.

Associate