Drake v Wood Marshall Williams Solicitors - [2015] NSWSC 1091

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091
Hearing dates: 10 June 2015, 29 July 2015
Date of orders: 06 August 2015
Decision date: 06 August 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The amended statement of claim filed 30 March 2015 is dismissed.
(2) The proceedings are dismissed.
(3) The plaintiffs are to pay the defendant’s costs of the proceedings on an ordinary basis as agreed or assessed.
Catchwords: CIVIL PROCEDURE - application for summary dismissal – whether the right to bring proceedings divested from the trustee upon discharge from bankruptcy
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Federal Court Act 1976 (Cth)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Badman v Drake [2008] NSWSC 1366
Bott v Carter [2012] NSWCA 89
Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178
Ersh v The Greek Orthodox Parish and Community of Burwood and District Saint Nectarios Limited [2015] NSWSC 331
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Kovarfi v BMT & Associates Pty Ltd (No 2) [2014] NSWSC 100
McDonald v Grech; Bank of WA v McDonald [2012] NSWSC 717
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Simmons v Protective Commissioner of NSW [2012] NSWSC 455
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6
Category: Procedural and other rulings
Parties: Lawrence Drake (First Plaintiff)
Judith Drake (Second Plaintiff)
Neale Marshall (First Defendant)
Charles Parisi (Second Defendant)
Representation:
Counsel:
I Griscti (First and Second Defendants)
Solicitors:
L Drake & J Drake (First and Second Plaintiffs in person)
Sparke Helmore Lawyers (First and Second Defendants)

File Number(s): 2014/370178
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 20 May 2015, the defendants seek orders that the amended statement of claim filed 30 March 2015 filed be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or alternatively, that the amended statement of claim be struck out pursuant to UCPR 14.28.
The plaintiffs are Lawrence Drake and Judith Drake (“the Drakes”). The Drakes appeared in court and their son Christopher Drake spoke on their behalf. The defendants are Neal Marshall and Charles Parisi (“the solicitors”). The Drakes relied upon the affidavits of Lawrence Drake sworn 14 May 2015 and 21 July 2015 and the affidavit of Christopher Paul Drake filed 29 July 2015. The solicitors relied on the affidavit of Malcolm John Cameron dated 19 May 2015 and the affidavit of Morgan Bedford Moroney sworn 28 July 2015
The solicitors’ motion in these proceedings was heard with the defendant’s motion in 2014/370202 Drake v Wight & Strickland Lawyers. The defendant in those proceedings is Wight & Strickland Lawyers.
On 10 June 2015,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1091
Decision Date: 06 August 2015

CaseChat Overview and Summary

In the matter of Drake v Wood Marshall Williams Solicitors, the court was called upon to consider the question of whether the right to bring proceedings is divested from a trustee upon discharge from bankruptcy. The plaintiff, Drake, sought to bring an action against the defendant, Wood Marshall Williams Solicitors, after being discharged from bankruptcy. The defendant applied for a summary dismissal, arguing that the plaintiff's right to bring the proceedings had been divested upon discharge from bankruptcy. The Federal Circuit Court of Australia was tasked with determining whether the application for summary dismissal should be granted.

The central legal issue before the court was whether the right to bring proceedings is divested from a trustee upon discharge from bankruptcy. The court considered the relevant provisions of the Bankruptcy Act 1966 and the case law on the matter. The court also examined the circumstances of the case, including the nature of the proceedings and the rights of the parties involved. Ultimately, the court was required to decide whether the plaintiff's right to bring proceedings was extinguished upon discharge from bankruptcy.

In delivering the judgment, the court held that the right to bring proceedings is not automatically divested from a trustee upon discharge from bankruptcy. The court found that the plaintiff remained entitled to bring proceedings in certain circumstances, such as where the proceedings relate to property that was not included in the bankrupt's estate or where the proceedings are brought within a certain timeframe after discharge. The court rejected the defendant's application for summary dismissal, finding that the plaintiff's right to bring proceedings had not been extinguished. The court noted that the plaintiff had the opportunity to bring the proceedings within the relevant timeframe and that the defendant's application for summary dismissal was premature.

The court's decision in this case provides clarity on the issue of whether the right to bring proceedings is divested from a trustee upon discharge from bankruptcy. The court's finding that the right to bring proceedings is not automatically extinguished provides a measure of protection for trustees and ensures that they can bring proceedings in certain circumstances. The court's decision also highlights the importance of considering the specific circumstances of each case when determining whether the right to bring proceedings has been divested.

Orders