Cousins v HTW Valuers Cairns Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Cousins v HTW Valuers Cairns Pty Ltd & Anor [2002] QSC 413

PARTIES:

RUSSELL KINGSLEY COUSINS
(applicant/plaintiff)
HTW VALUERS (CAIRNS) PTY LTD
(First respondent/defendant)
I & L SECURITIES PTY LTD
(Second respondent/defendant)

FILE NO/S:

41 of 1999

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

7 November 2002

DELIVERED AT:

Cairns

HEARING DATE:

21 October 2002

JUDGE:

Jones J

ORDER:

1. That the application be dismissed.
2. That the applicant pay the respondents’ costs on the standard basis.

CATCHWORDS:

BANKRUPTCY – DISCHARGE OF BANKRUPT – where applicant, upon discharge, sought to continue an action begun before he was involuntarily made a bankrupt – whether property, (including chose in action vested in a trustee – in – bankruptcy by virtue of a sequestration order made under the Bankruptcy Act 1966 (Cth), continues to be so vested after discharge of the bankrupt.

BANKRUPTCY – TRUSTEES – Effect of deemed abandonment of action

Bankruptcy Act 1966 (Cth) s 5, s 60(2), s 60(3), s 60(5), s 116, s 152, s 153(1)
Daemer v Industrial Commission of New South Wales [No.2] (1990) 22 NSWLR 178, applied
Theissbacher v MacGregor Garrick & Co [1993] 2 QdR 223, distinguished

COUNSEL:

The applicant/plaintiff appeared on his own behalf
G. Walker (Solicitor) for the first respondent
A. Philp for the second respondent

SOLICITORS:

The applicant/plaintiff appeared on his own behalf
Gayler Cleland Towne for first respondent
Deacons for the second respondent

1. This is an application by the plaintiff to continue an action begun before he was involuntarily made a bankrupt.

1. There is no dispute about the action already commenced by the plaintiff being divisible property of the bankrupt estate pursuant to s 5 definition or property and s 116 of the Act. An action is defined in s 60(5) of the Bankruptcy Act 1996 (Cth) (“the Act”) to mean any civil proceeding whether at law or in equity.

1. On 19 March 1999 the applicant /plaintiff commenced by a Writ of Summons an action for damages for negligence against the first defendant in valuing land owned by the plaintiff and, against the second defendant, an action for damages for negligence and breach of duty to the plaintiff as mortgagee in possession of the same property.  On 16 June 1999 sequestration orders were made against the applicant and his wife.  A Trustee in Bankruptcy was appointed by the Federal Court of Australia as trustee to the estate of the applicant.

1. Section 60(2) of the Act provides that any action commenced by a person who subsequently becomes a bankrupt is, upon that person’s becoming a bankrupt, stayed until the trustee makes election, in writing, either to prosecute or discontinue the action. That same section further provides that, where the trustee has failed to make an election in writing, a defendant may serve on the trustee a notice of the action requiring the trustee to make an election whether or not to proceed.

1. Such a notice was served by the then solicitors for…