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Daemar v Industrial Commission of New South Wales

Daemar v Industrial Commission of New South Wales

Case [1990] NSWCA 50 10 September 1990

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Supreme Court

New South Wales

Medium Neutral Citation: DAEMAR v INDUSTRIAL COMMISSION OF NEW SOUTH WALES [1990] NSWCA 50
Decision date: 10 September 1990

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AGLC: Daemar v Industrial Commission of New South Wales [1990] NSWCA 50
Case: [1990] NSWCA 50
Decision Date: 10 September 1990

CaseChat Overview and Summary

The case of *Daemar v Industrial Commission of New South Wales* [1990] NSWCA 50 was heard by the New South Wales Court of Appeal. The dispute concerned an appeal by Mr. Daemar against a decision of the Industrial Commission of New South Wales.

The primary legal issue before the Court of Appeal was whether the Industrial Commission had erred in law by refusing to grant Mr. Daemar leave to appeal against a decision of a single Commissioner. This involved an examination of the principles governing the grant of leave to appeal within the Industrial Commission's jurisdiction.

The Court of Appeal considered the criteria for granting leave to appeal, particularly in circumstances where the applicant sought to raise new grounds of appeal that were not presented to the original decision-maker. The Court affirmed that leave to appeal is not a matter of right and requires the applicant to demonstrate that there is a reasonably arguable case of error in the original decision. The Court found that Mr. Daemar had failed to establish such a case, as the new grounds he sought to raise were not supported by the evidence or the relevant legal principles.

Consequently, the Court of Appeal dismissed Mr. Daemar's appeal and affirmed the decision of the Industrial Commission.

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Citations

Daemar v Industrial Commission of New South Wales [1990] NSWCA 50

Most Recent Citation

Pearce v Mellor Olsson No. DCCIV-99-1436 [2000] SADC 42

Cases Citing This Decision

46

Tricom Equities Ltd v Labaj [2005] FMCA 757
Citation 1 (Para 7)

…A bankrupt's property vested in his or her trustee by reason of s.58(1) of the Act does not re-vest in the bankrupt upon his or her discharge. So much appears to have been decided in Daemar v Industrial Commission (NSW) (No. 2) (1990) 22 NSWLR 178 (followed in Queensland for example in Cousins v HTW…
Thompson v Lane [2024] FCA 1234
Citation 2 (Para 9)

…As noted by Kirby J in Daemar v Industrial Commission of New South Wales and Anor (No 2) (1990) 22 NSWLR 178, following Pegler v Dale [1975] 1 NSWLR 265, property vested in a trustee during a bankruptcy continues to be vested in the trustee after discharge of the bankruptcy. The property does not re…
Pekar v Jess (Trustee) [2022] FCA 1367
Citation 3 (Para 4)

…Mr Pekar submitted that the Act clearly declares that the bankruptcy arising from personal insolvency is in force for three years and that no debts can be admitted after the bankruptcy is discharged and at the end of the administration of the estate. This submission is misconceived for the following…
Jess v McNiven, in the matter of McNiven (No 2) [2022] FCA 446
Citation 4

…FEDERAL COURT OF AUSTRALIA Jess v McNiven, in the matter of McNiven (No 2) [2022] FCA 446 File number: VID 1571 of 2018 Judgment of: ANASTASSIOU J Date of judgment: 29 April 2022 Catchwords: BANKRUPTCY – where bankrupts owned a matrimonial home and investment property at time of bankruptcy – where p…
Valder & Saklani [2021] FamCAFC 142
Citation 5 (Para 6)

…The effect of the discharge of the second respondent from his bankruptcy on 7 March 2018 is that “the discharge operates to release him or her from all debts” (s 153(1) of the Bankruptcy Act) except for those identified in the following subsections. However, a discharge does not operate to revest in…
Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540
Citation 6

…Medium Neutral Citation: Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540 Hearing dates: 11 and 12 August 2020 Date of orders: 2 November 2020 Decision date: 02 November 2020 Jurisdiction: Equity Before: Robb J Decision: See par [309]. Catchwords: COSTS — Party/Party — where there has been long an…
Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485
Citation 7 (Para 16)

…On the basis of the facts pleaded in the ASOC, any claim that Mr Batterham had against Mr Nauer in respect of any breach of the joint venture agreement or breach of fiduciary duty, or claim to set aside the settlement deed, existed well prior to Mr Batterham’s bankruptcy. By 12 August 2014, Vesture …
Armstrong Scalisi Holdings Pty Ltd v Gioiello [2018] FCA 1729
Citation 8 (Para 2)

…In Norilya Minerals Pty Ltd, in the matter of Dean Edward Ireland v Adam Jonathan Ireland as named Executor of the Estate of Dean Edward Ireland [2006] FCA 1235 at [32] ( Norilya Minerals ), in relation to an application for leave pursuant to s 58(3) of the Act, French J said: 32Discharge of a bankr…
Diaspora Holdings Pty Ltd v The Owners - Strata Plan No. 68608 [2018] NSWCATCD 52
Citation 9

…Medium Neutral Citation: Diaspora Holdings Pty Ltd v The Owners – Strata Plan No. 68608 [2018] NSWCATCD 52 Hearing dates: 16 January 2018 & 26 March 2018 Date of orders: 04 September 2018 Decision date: 04 September 2018 Jurisdiction: Consumer and Commercial Division Before: D G Charles, Senior Memb…
Morris v IMF Bentham Limited [2018] FCA 1009
Citation 10 (Para 4)

…It is immaterial that Mr Morris has since been discharged from bankruptcy. Property of a bankrupt that vests in the trustee in bankruptcy, including a chose in action, does not re-vest in the bankrupt when he or she is discharged from bankruptcy: Daemar v Industrial Commission of New South Wales (No…
Nugawela, Bankrupt and Commissioner of Taxation [2018] AATA 979
Citation 11 (Para 47)

…The Respondent’s submissions of 18 December 2017 are relevantly, as follows: …(b) Standing to progress or manage the applications 33. The High Court in Cummins v Claremont (1996) 185 CLR 124 at 137 – 138, by Brennan CJ, Gaudron J, McHugh J said: “the bankrupt has no financial interest which would co…
Ferdinands v The State of South Australia (No 2) [2017] FCA 1436
Citation 12

…FEDERAL COURT OF AUSTRALIA Ferdinands v The State of South Australia (No 2) [2017] FCA 1436 File number: SAD 123 of 2016 Judge: CHARLESWORTH J Date of judgment: 4 December 2017 Catchwords: BANKRUPTCY AND INSOLVENCY – application for summary judgment on the ground that the applicant does not have sta…
Stone v Permanent Custodians Ltd [2016] WASCA 200
Citation 13 (Para 8)

…The position does not change after the person's discharge from bankruptcy in respect of property that vested in the Official Trustee under s 58(1). The discharge of a bankrupt does not cause any assets that have vested in the Official Trustee to revert to the bankrupt; the property vested in the Off…
Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091
Citation 14 (Para 30)

…As stated by Campbell J in Kovarfi (No 2) , the issue above was “settled beyond argument” by the decision of the Court of Appeal in Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178. In Kovarfi (No 2) at [35] his Honour continued:…
Drake v Wight and Strickland Lawyers [2015] NSWSC 1090
Citation 15 (Para 27)

…As stated by Campbell J in Kovarfi (No 2) , the issue above was “settled beyond argument” by the decision of the Court of Appeal in Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178. In Kovarfi (No 2) at [35] his Honour continued:…
Garrett v Make Wine Pty Ltd [2015] FCA 593
Citation 16 (Para 29)

…On the specific question of lack of standing, her Honour held at [99], [100], [102] to [108] the following: 99There could be no controversy over Mr Garrett’s standing in relation to any of these claims but for his bankruptcy. 100On the effect of his bankruptcy, the respondents relied on the case of …
Hudson v Sigalla (No.2) [2015] FCCA 542
Citation 17 (Para 7)

…There is no authority available to me precisely on the question of whether s.58(3) is enlivened in the present circumstances. In Norilya Minerals Pty Ltd, in the matter of Dean Edward Ireland v Adam Jonathon Ireland as named executor of the estate of Dean Edward Ireland [12] French J (as his Honour …
Garrett v Make Wine Pty Ltd [2014] FCA 1258
Citation 18 (Para 28)

…The Court found Mrs Samootin lacked standing to bring the application for leave to appeal. It noted that the property which vested in a trustee in bankruptcy at bankruptcy included choses in action, relying on Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178 at 184-185 per Kirby P, w…
Madden v Official Trustee in Bankruptcy [2014] FCA 446
Citation 19 (Para 9)

…Relevantly to the matters in contention, Stevenson J said at [135]-[162]: 135My conclusion is that Bill [Mr Madden] and Margaret [Ms Falloon] contributed very nearly, but not quite equally to the purchase price [of the Woolooware Property]. I find that Margaret contributed $401,046.72 and that Bill …
Kovarfi v BMT & Associates Pty Ltd (No 2) [2014] NSWSC 100
Citation 20 (Para 1)

…The next question then is whether, upon discharge from bankruptcy, the cause of action divested from the trustee and re-vested in the first and second plaintiffs. The answer to this question is settled beyond argument in New South Wales by the decision of the Court of Appeal in Daemar v Industrial C…
Falloon v Madden; Madden v Madden [2012] NSWSC 652
Citation 21 (Para 1)

…Mr Evans accepts that Bill's interest in the Woolooware Property remains vested in the Official Trustee, notwithstanding his subsequent discharge from bankruptcy: Official Receiver v Schultz (1990) 170 CLR 306; Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178; Gosden v Dixon (1992) 1…
Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 16
Citation 22 (Para 1)

…Property divisible among a bankrupt’s creditors remains vested in his trustee after his discharge from bankruptcy.[38] [38] Daemar v Industrial Commission (NSW) (No 2) (1990) 99 ALR 789, 795; Freeman v National Australia Bank Limited [2006] QCA 260, [10] – [13].…
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Citation 23

…Medium Neutral Citation: Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 Hearing dates: 24 & 25 August 2011 Decision date: 08 September 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: The Defendant should make available out of the estate of the deceased, a lump sum of $…
Popovski v Kenjar [2011] NSWSC 731
Citation 24

…Medium Neutral Citation: Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731 Hearing dates: 30 June 2011 Decision date: 22 July 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: Order that the time for the making of Ms Hafizovic's application be extended to the date of the fi…
Samootin v Shea [2010] NSWCA 371
Citation 25

…CITATION: Samootin v Shea [2010] NSWCA 371 HEARING DATE(S): 8 November 2010 JUDGMENT DATE: 21 December 2010 JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Campbell JA at 10 DECISION: (1) All applications presently on foot by Alexandra Samootin seeking leave to appeal from a decision of Hammerschlag …
Kennards Hire Pty Ltd v RMGA Pty Ltd [2010] NSWSC 1387
Citation 26

…CITATION: Kennards Hire Pty Ltd v RMGA Pty Ltd [2010] NSWSC 1387 HEARING DATE(S): 17/11/10 JUDGMENT DATE : 2 December 2010 JURISDICTION: Equity Division Corporations List JUDGMENT OF: Barrett J DECISION: 1. Order that the remuneration determined by the first resolution set out at paragraph [22] of r…
Metherell v Public Trustee in its Capacity as Executor of the Estate of the late Patricia Helen Peek [2010] WASC 205
Citation 27 (Para 4)

…Nevertheless, and notwithstanding his later discharge from bankruptcy, the rights in distribution of the sole beneficiary vested in the Official Trustee in Bankruptcy upon the bankruptcy and they remain vested in the Official Trustee in Bankruptcy notwithstanding the discharge. That is clearly the l…
Griffiths v Falck [2008] NSWSC 998
Citation 28

…CITATION: Griffiths v Falck [2008] NSWSC 998 HEARING DATE(S): 21/08/08 JUDGMENT DATE : 25 September 2008 JURISDICTION: Equity Division JUDGMENT OF: Young CJ in Eq DECISION: The appeal is dismissed with costs. CATCHWORDS: CONVEYANCING [269]- Judgment debtor transferred certain property to family memb…
Boyapati v Rockefeller Management Corporation [2008] FCA 995
Citation 29

…FEDERAL COURT OF AUSTRALIA Boyapati v Rockefeller Management Corporation [2008] FCA 995 COPYRIGHT – copyright in practice exams and answers – infringement – originality – additional relief for conversion of infringing copy – additional damages – whether innocent infringement – ss 115 and 116 Copyrig…
Fitzpatrick v Keelty [2008] FCA 35
Citation 30 (Para 10)

…The respondents submit that as a result of the deemed abandonment of the proceedings, the stay provided by s 60(2) continues to operate, referring to the discussion by Ipp J in Stobbart v Mocnaj (1996) 16 WAR 318 at 323. The effect of the deemed abandonment of the proceedings, where the applicant ma…
Willoughby v Clayton Utz [2007] WASCA 5
Citation 31

…Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 Bride v Peat Marwick Mitchell [1989] WAR 383 Bride v The Australian Bank, unreported; FCt SCt of WA; Library No 960565; 25 September 1996 Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 Edwa…
Norilya Minerals Pty Ltd, in the matter of Dean Edward Ireland v Adam Jonathon Ireland as named executor of the estate of Dean Edward Ireland [2006] FCA 1235
Citation 32 (Para 3)

…Discharge of a bankrupt does not spell the end of the trustee’s duties to distribute to creditors such property as remains vested in the trustee. Property, including choses in action, which has vested in a trustee by reason of bankruptcy continues to be so vested after the discharge of the bankrupt.…
Bagshaw v Scott [2005] FCA 104
Citation 33 (Para 25)

…Upon his bankruptcy, any extant causes of action of Mr Bagshaw vested in his trustee in bankruptcy pursuant to s 58(1) of the Act and so became property divisible among his creditors under s 116(1)(a) of the Act. It remained so vested despite Mr Bagshaw’s discharge from bankruptcy in 2002 (cf. Pegle…
Roberts v Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC 734
Citation 34

…CITATION: Roberts v Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC 734 HEARING DATE(S): 26/07/04 JUDGMENT DATE: 17 August 2004 JURISDICTION: Equity Division Corporations List JUDGMENT OF: Barrett J DECISION: Winding up application dismissed CATCHWORDS: CORPORATIONS - winding up - debt owe…
Commonwealth Bank of Australia v Bride [2004] WASC 177
Citation 35 (Para 2)

…as become vested in the trustee or otherwise affect the title to, or registration of, such property - Official Receiver v Schultz (1990) 170 CLR 306; Daemar v Industrial Commission of NSW (1990) 99 ALR 789 and Gosden v Dixon (1992) 107 ALR 329.…
Donkin v The Official Trustee in Bankruptcy [2003] QSC 401
Citation 36 (Para 5)

…The respondent’s discharge from bankruptcy has not resulted in the chose of action, being the claim against Murphy, in reverting to his ownership. See Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 at 184-5.…
Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218
Citation 37 (Para 1)

…The right or cause of action for damages for negligence, which the appellant plaintiff Mrs Stone seeks to enforce against the respondent defendant Ace-IRM Insurance Broking Pty Ltd, may be assumed to have accrued at some time in the first half of 1996. She became bankrupt on 24 December of that year…
Emilco [2001] NSWSC 1035
Citation 38

…COUNSEL : Mr J.B. Whittle SC/Mr H.F. Woods - Applicant Mr M.K. Rollinson - Defendant Mr B.A.J. Guest - Creditors Mr Winter - Solicitor for Mr T. Dixon SOLICITORS: Clinch Neville Long Lawyers - Applicant Carters Law Firm - Respondent Egisto Solicitors - Creditors CATCHWORDS: EQUITY - trusts and trust…
Willoughby v Official Trustee in Bankruptcy [2001] FCA 753
Citation 39 (Para 3)

…chose in action vested in the Trustee, and remained vested in the Trustee notwithstanding the discharge of the [applicants] from bankruptcy: Daemar v Industrial Commission of NSW (1990) 99 ALR 789 at 793, 795. There was no challenge to any of these propositions in the present proceedings. The Trustee has power to sell or assign any part of t…
Macculloch v TNT Ltd [2000] NSWSC 1183
Citation 40

…COUNSEL : Mr P S Hastings QC with Ms D Spears (Plaintiff) Mr A Leopold (1st to 5th Defendants) Mr D A Buchanan SC (6th to 9th Defendants) SOLICITORS: Gary Stewart & Associates (Plaintiff) Ebsworth & Ebsworth (1st to 6th Defendants) Ms J M Graham Crown Solicitors Office (6th to 9th Defendants) CATCHW…
Willoughby v Official Trustee in Bankruptcy (WA) [2000] FCA 757
Citation 41 (Para 11)

…he chose in action vested in the Trustee, and remained vested in the Trustee notwithstanding the discharge of the appellants from bankruptcy: Daemar v Industrial Commission of NSW (1990) 99 ALR 789 at 793, 795. There was no challenge to any of these propositions in the present proceedings.…
Willoughby v The Official Trustee in Bankruptcy (W.A.) [1999] FCA 1715
Citation 42 (Para 30)

…The applicants were all discharged from bankruptcy on 16 January 1994. Such discharge occurred automatically by operation of s 149 of the Act upon the expiration of the period of three years from the date on which the bankrupt filed his or her statement of affairs and in the absence of objection. Th…
Kison v Papasian [1994] SASC 4476
Citation 43

…6. The discharge of the bankrupt does not serve to revest the property from the Official Trustee - see Pegler v Dale (1975) 6 ALR 62; Daemar v Industrial Commission of New South Wales (No.2) (1990) 99 ALR 798.…
Ambridge Investments Pty Ltd (in liq) v Baker [2020] VSC 534
Citation 44 (Para 1)

…The fact that Mr Voukidis is now discharged from his bankruptcy does not change the position.[6] Insufficient time has elapsed for any such rights to revest in the bankrupt after discharge by operation of the statute.[7] In the circumstances, Mr Voukidis does not have standing to seek these costs. T…
Paphitis Nominees P/L v Quality Food World P/L [2017] SADC 144
Citation 45 (Para 21)

…In Willoughby v Clayton Utz ,[6] Master Newnes of the Supreme Court of Western Australia held: Section 58(1)(a) of the Act provides that at the date of bankruptcy all of the property of the bankrupt vests forthwith in the Official Trustee and s 58(1)(b) provides that any after-acquired property vest…
Pearce v Mellor Olsson No. DCCIV-99-1436 [2000] SADC 42
Citation 46 (Para 4)

…The Master was incorrect in law in his reasons in apparently treating “wrong” in s116(2)(g)(i) as being any claim in tort or contract. On the authorities it is confined to personal wrong: Cox v Journeaux (No 2) (above); Griffiths v Civil Aviation (above). The Master was incorrect in law in finding t…

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