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Foyster v Prentice

Foyster v Prentice

Case [2008] FMCA 757 11 June 2008

Bankruptcy – Trustees – duties of trustee considered

Bankruptcy – Property divisible amongst creditors – protected money – characterisation of property – whether property can lose its protected character

Insolvency Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOYSTER v PRENTICE

[2008] FMCA 757

BANKRUPTCY – Trustees – application for review of trustee’s conduct – principles involved.

BANKRUPTCY – Property divisible amongst creditors – protected money – characterisation of property – whether property can lose its protected character.

BANKRUPTCY – Trustees – duties of trustee considered.

Bankruptcy Act 1869, s.25
Bankruptcy Act 1966, ss.5, 19, 30, 54, 60, 73, 77, 116, 134, 135, 170, 176, 178, 179
Legal Profession Act 2004 (NSW), ss.319, 325

Watson v Healey (1996) 64 FCR 301
Re Cheesman (1997) 143 ALR 78
Macchia v Nilant (2001) 110 FCR 101
Re Gillies; ex parte Official Trustee in Bankruptcy v Gillies (1993) 42 FCR 571
Trustee of the property of O’Reilly v Law Society of New South Wales (2001) 110 FCR 574
Clayton’s case (1816) 1 Merc. 572; 35 ER 781
De Robillard v Carver [2007] FCAFC 73
Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238
Beckham v Drake (1849) 2 HLC 579
Cox v Journeaux (No 2) (1935) 52 CLR 713
Re Iskenderian; ex parte Iskenderian Bros Pty Ltd (1990) 21 FCR 363
Union Fidelity Trustee Company of Australia Ltd v Dodds (1967) 10 FLR 111
Re Manivilovski; ex parte Official Trustee in Bankruptcy (1993) 45 FCR 358
Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418
Re Jemielita; ex parte Official Trustee in Bankruptcy (1996) 63 FCR 141
Tyler v Thomas (2006) 3 ABC (NS) 773
Re Simersall; Blackwell v Bray (1992) 35 FCR 584
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Re Tyndall (1977) 30 FLR 6
Healey v Prentice (No. 2) [2000] FCA 1598
Re Dingle; ex parte Westpac Banking Corporation v Worrell (1993) 47 FCR 478
McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547
Health Insurance Commission v Trustee in Bankruptcy of the estate of Alekozoglou (2003) 1 ABC (NS) 365
Freeman v National Australia Bank Ltd (2003) 2 ABC (NS) 51
Jones v Daniel (2004) 141 FCR 148
Pridmore v Magenta Nominees Pty Ltd & Ors (1998) 161 ALR 458
Re Neville; ex parte Pike (1896) 17 LR (NSW) B & P 24
Brown v Amor Holdings Australia Pty Ltd [2006] QSC 393
Re Nguyen; ex parte Official Receiver in Bankruptcy (1992) 35 FCR 320
Kitson v Hardwick (1872) LR 7 CP 473
Guy v Churchill (1884) 40 Ch D 481
Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550
Willoughby v Official Receiver in Bankruptcy [2001] FCA 753; [2001] FCA 1345
Re Cirillo; ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576
Freeman v Joiner [2005] FCAFC 149
Re Gargan; ex parte Gargan v Official Trustee in Bankruptcy [1995] FCA
J Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 925
Re Arthur Williams & Co; ex parte Official Receiver [1913] 2 KB 88
Mannigel v Aitken (1983) 77 FLR 406
Re Hurt; ex parte Hurt (1988) 80 ALR 236
Adsett v Berlouis (1992) 37 FCR 201
Ex…

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.

Continue reading Foyster v Prentice

Details

AGLC: Foyster v Prentice [2008] FMCA 757
Case: [2008] FMCA 757
Decision Date: 11 June 2008

CaseChat Overview and Summary

The case of Foyster v Prentice involved the applicant, Foyster, who sought a review of the conduct of the respondent, Prentice, who was the trustee of the applicant's bankruptcy estate. The dispute was heard in the Federal Court of Australia. The applicant challenged the manner in which Prentice had exercised his powers as trustee, particularly in relation to the distribution of the bankruptcy estate. The crux of the matter was whether certain assets retained their protected status and if Prentice had breached his fiduciary duties in handling these assets.

The legal issues before the court revolved around the interpretation and application of the Bankruptcy Act 1966, specifically focusing on the duties of a trustee and the characterisation of property within a bankruptcy estate. Key questions included whether the assets in question could lose their protected status and if Prentice had acted appropriately in managing the estate. The court had to determine if Prentice's actions were in accordance with his statutory obligations and whether the applicant had grounds to challenge these actions.

The court examined the relevant provisions of the Bankruptcy Act and considered precedents to assess Prentice's conduct. It concluded that Prentice had discharged his duties in accordance with the Act and had correctly managed the assets of the estate. The court found that the assets in question did not lose their protected status and that Prentice had acted within his authority. Therefore, the court dismissed Foyster’s application and ordered that Foyster pay Prentice’s costs associated with both the original and amended applications.

Orders

Orders of the court

The application filed 13 December 2005 and the amended application filed 3 April 2006 each be dismissed.

The applicant shall pay the respondent’s costs of and incidental to each application, to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Foyster v Prentice [2008] FMCA 757

Most Recent Citation

Jacks v Jakimowicz [2011] VCC 1409

Cases Citing This Decision

Jakimowicz v Jacks [2016] VSCA 42
Citation 1 (Para 1)

…ntended to ensure that [Mr Jacks] enjoy his full equitable interest (represented by his payout) unaffected by the encumbrance.’[84] [81][2008] FMCA 757. [82]Ibid [73]. [83]Reasons [187]–[189]. [84]Ibid [190].…
Jacks v Jakimowicz [2015] VCC 1067
Citation 2

…[39] [2008] FMCA 757.…
Shirreff v Lofthouse [2012] FMCA 480
Citation 3 (Para 14)

…But I have been referred, very helpfully if I may say so by counsel for the applicant, to the case of Foyster v Prentice [2008] FMCA 757, a decision of Wilson FM given on 11 June 2008, and the relevant extracts of that judgement (see at [83] – [84]) are from judgments of Deane and Madgwick JJ. “In Re Tyndall (1977…
Jacks v Jakimowicz [2011] VCC 1409
Citation 4

…vin property (2001) the monies lost their character as compensation. The defendant relied upon Foyster v Prentice [2008] FMCA 757 . The defendant argues that having regard to the history of dealings between the parties and the various agreements made, the money used to fund the purchase of the Willowmavin property…
Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421
Citation 5 (Para 16)

…Forge ”). For a helpful and more detailed exposition of cases concerning the duties of a trustee in bankruptcy see Foyster v Prentice [2008] FMCA 757 at paras185-202 per Wilson FM. Forge is discussed in Australian Bankruptcy Law and Practice at para.1.0 in similar terms, but in the context of the overall statutory…

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Cases Cited

De Robillard v Carver [2007] FCAFC 73
Citation 1 (Para 30)

…In De Robillard v Carver [2007] FCAFC 73 at [136] Buchanan J said: The policy behind s 54 was described by Hill J in Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 as follows (at 245): ‘Given the penal nature of the obligation created by s 54 , it is difficult to see that breach of the section, no matter ho…
Brown v Amor Holdings Australia Pty Ltd [2006] QSC 393
Citation 2 (Para 24)

…that right to a third party, either during the bankruptcy, or after the bankrupt has been discharged (citing Brown v Amor Holdings Australia Pty Ltd [2006] QSC 393). It has been held that it is not contrary to the policy of the Bankruptcy Act for the trustee to assign the cause of action back to the bankrupt: Re…
Tyler v Thomas [2006] HCATrans 477
Citation 3 (Para 13)

…In either case, declaratory relief is discretionary. In Tyler v Thomas (2006) 3 ABC (NS) 773 at [13], [78] and [208] the members of the Full Federal Court concluded that s. 30(1) of the Act should not be used as a source of power to override express provisions of the Act. Whilst I do not suggest that is what is being at…
Freeman v Joiner [2005] FCAFC 149
Citation 4 (Para 29)

…In Freeman v Joiner [2005] FCAFC 149 the Full Federal Court considered the decision of trustee not to assign causes of action to a bankrupt. The applicant sought review of the trustees’ decision requiring them to be put in funds before they determined whether to assign the causes of action to him, pursuant to s.178…
Jones v Daniel [2004] FCAFC 278
Citation 5 (Para 22)

…It has been held that s.178 enables the court to make declarations and orders as to the ownership of property claimed by the trustee: Jones v Daniel (2004) 141 FCR 148. That reinforces my view that the application should primarily be considered under s.178 rather than under s.30(1).…
Jacqueline Foyster v Foyster Holdings (in liq) [2003] NSWSC 925
Citation 6

…576 Freeman v Joiner [2005] FCAFC 149 Re Gargan; ex parte Gargan v Official Trustee in Bankruptcy [1995] FCA J Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 925 Re Arthur Williams & Co; ex parte Official Receiver [1913] 2 KB 88 Mannigel v Aitken (1983) 77 FLR 406 Re Hurt; ex parte Hurt (1988) 80 ALR 236 Adsett v…
Gao v Official Trustee in Bankruptcy [2003] FCAFC 84
Citation 7 (Para 24)

…der on a trustee to make good loss caused by misfeasance, negligence or wilful default on his part. See also Gao v The Official Trustee in Bankruptcy [2003] FCAFC 84 at [28].…
Freeman v National Australia Bank [2003] HCATrans 613
Citation 8 (Para 21)

…he role and work of the trustee unmanageable. It is not enough that the judge might have acted differently: Healey v Prentice (No 2) [2000] FCA 1598; Freeman v National Australia Bank Ltd (2003) 2 ABC (NS) 51 at [11-13]…
Wakim v HIH Casualty and General Insurance Ltd [2001] FCA 1892
Citation 9 (Para 2)

…usiness would in the circumstances. This standard requires of the trustee good faith and reasonable diligence in the performance of its function: Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58…
Willoughby v Official Trustee in Bankruptcy [2001] FCA 1345
Citation 10 (Para 27)

…or not to assign a cause of action may be reviewed by the court under s.178 of the Act: Willoughby v Official Receiver in Bankruptcy [2001] FCA 753; [2001] FCA 1345.…
Pridmore v Magenta Nominees Pty Ltd [2001] FCA 815
Citation 11 (Para 14)

…red to act as a fiduciary in relation to the estate of the bankrupt except where the Bankruptcy Act provides otherwise: Re Ladyman (1981) 55 FLR 383; Pridmore v Magenta Nominees Pty Ltd (1998) 161 ALR 458. However, in my view the trustee does not act as a fiduciary vis a vis the bankrupt in the widest sense of that word in equity. As the ca…
Willoughby v Official Trustee in Bankruptcy [2001] FCA 753
Citation 12 (Para 27)

…ustee to assign, or not to assign a cause of action may be reviewed by the court under s.178 of the Act: Willoughby v Official Receiver in Bankruptcy [2001] FCA 753; [2001] FCA 1345.…
Trustee of the Property of Patrick Bede O'Reilly v Law Society of New South Wales [2001] FCA 701
Citation 13 (Para 11)

…s; ex parte Official Trustee in Bankruptcy v Gillies (1993) 42 FCR 571 at 577; Trustee of the property of O’Reilly v Law Society of New South Wales (2001) 110 FCR 574 at 577.…
Nilant v Macchia [2001] FCA 340
Citation 14 (Para 30)

…De Robillard v Carver [2007] FCAFC 73 at [136] Buchanan J said: The policy behind s 54 was described by Hill J in Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 as follows (at 245): ‘Given the penal nature of the obligation created by s 54 , it is difficult to see that breach of the section, no matter how ina…
Macchia v Nilant [2001] FCA 7
Citation 15 (Para 11)

…upt has no standing to seek relief under s.178 of the Act. However, subsequent authority has taken a different view: Re Cheesman (1997) 143 ALR 78; Macchia v Nilant (2001) 110 FCR 101. In my respectful view the construction of s.178(1) which allows for a discharged bankrupt to seek review is to be preferred, as it accords…
Healey v Prentice (No 2) [2000] FCA 1598
Citation 16 (Para 18)

…In Healey v Prentice (No. 2) [2000] FCA 1598 Madgwick J said at [20] – [22]: “[20] The Court is given a very broad supervisory role. The only constraint is that it must be made to appear to the Court that it is just and equitable to make some proposed order. While, for historical reasons, its is well settled that…
Nilant v Macchia [2000] FCA 1528
Citation 17 (Para 30)

…In De Robillard v Carver [2007] FCAFC 73 at [136] Buchanan J said: The policy behind s 54 was described by Hill J in Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 as follows (at 245): ‘Given the penal nature of the obligation created by s 54 , it is difficult to see that breach of the section, no matter ho…
Foyster v Australian and New Zealand Banking Group Ltd [2000] FCA 1254
Citation 18 (Para 2)

…making of a sequestration order, inter alia on the grounds that he was solvent. Hely J made such an order: [2000] FCA 400. An appeal was dismissed: [2000] FCA 1254. Special leave to appeal to the High Court was refused on 15 December 2000.…
Haskins v Official Trustee in Bankruptcy [2000] FCA 691
Citation 19 (Para 37)

…A request for information was considered in Haskins v Official Trustee in Bankruptcy [2000] FCA 691. There Finkelstein J declined to make any order because the applicants had sufficient information. In my view, that is the position with the present applicant. He now knows what happened with the monies he paid to…
Australia & New Zealand Banking Group Pty Ltd v Foyster [2000] FCA 400
Citation 20 (Para 2)

…980s. The applicant sought to oppose the making of a sequestration order, inter alia on the grounds that he was solvent. Hely J made such an order: [2000] FCA 400. An appeal was dismissed: [2000] FCA 1254. Special leave to appeal to the High Court was refused on 15 December 2000.…
Wakim v HIH Casualty & General Insurance Ltd [2001] FCA 103
Citation 21 (Para 2)

…dard requires of the trustee good faith and reasonable diligence in the performance of its function: Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58…
Wilson v Commonwealth of Australia [1999] FCA 219
Citation 22 (Para 23)

…s. 178 to challenge conduct of a trustee by seeking a review by the court of an act omission or decision of the trustee: Wilson v Commonwealth [1999] FCA 219…
Turner v Official Trustee in Bankruptcy [1998] FCA 1558
Citation 23 (Para 11)

…a discharged bankrupt has no standing to seek relief under s.178 of the Act. However, subsequent authority has taken a different view: Re Cheesman (1997) 143 ALR 78; Macchia v Nilant (2001) 110 FCR 101. In my respectful view the construction of s.178(1) which allows for a discharged bankrupt to seek review is to be…
Citicorp Australia Ltd v Official Trustee in Bankruptcy [1996] FCA 1115
Citation 24 (Para 26)

…sell property under s.134 of the Act includes the power to sell or assign a chose in action: Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550.…
Turner v Official Trustee in Bankruptcy [1996] FCA 1074
Citation 25 (Para 1)

…Re Manivilovski; ex parte Official Trustee in Bankruptcy (1993) 45 FCR 358 and approved by the Full Court in Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 422. In the latter case, their Honours alluded, in passing, to the potential need in particular cases to a tracing exercise to see what has become…
Kennedy, David v Australian Mutual Provident Society (ARBN 008 387 371) [1996] FCA 1045
Citation 26 (Para 4)

…her capacity as trustee of the estate of the bankrupt ( Hunt Bros v Colwell [1939] 4 All ER 406; Kennedy v Australian Mutual provident Society [1996] FCA 1045) with a right on indemnity against the estate for the costs and expenses properly incurred in administering the estate : RWG Management Ltd v Commissioner…
Re Gargan, Peter Alexander Ex Parte The Official Trustee in Bankruptcy [1996] FCA 685
Citation 27 (Para 3)

…diligently and prudently in regard to the business of the trust. See Riley J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 at 285.” Mannigel was approved by the Full Court of this Court in Adsett at 208 (Northrop, Wilcox and Cooper JJ) and Citicorp Australia Ltd v Official Trustee in Bankruptc…
Watson v Healey [1996] FCA 101
Citation 28 (Para 11)

…The applicant’s standing to bring the present application must be briefly considered. There is authority ( Watson v Healey (1996) 64 FCR 301) that a discharged bankrupt has no standing to seek relief under s.178 of the Act. However, subsequent authority has taken a different view: Re Cheesman (1997) 143 ALR 78; Macc…
Bethune v Newman [1996] FCA 6
Citation 29 (Para 18)

…st and equitable that the Court should afterwards intervene in some fashion. [22] This view I think is in accord with what RD Nicholson J said in Bethune v Newman (1996) 19 ACSR 99 and of the approach of Lee J in Re Wheeler; ex parte Wheeler v Halse (1994) 54 FCR 166 at 170. “…
Re Duckworth, Neil James Ex Parte Official Trustee in Bankruptcy [1995] FCA 840
Citation 30 (Para 4)

…nct from the trustee’s entitlement to recoupment out of the bankrupt’s estate (citing Pitts v La Fontaine (1880) 6 App Cas 482 at 486; Re Driller (1972) 21 FLR 159 at 175. It is a personal obligation, whereupon the question separately arises in the administration of the bankruptcy as to the trustee’s right to reimbu…
Re Wheeler G.J & Wheeler V.S Ex parte; Wheeler G J v Halse a J [1994] FCA 1060
Citation 31 (Para 18)

…n accord with what RD Nicholson J said in Bethune v Newman (1996) 19 ACSR 99 and of the approach of Lee J in Re Wheeler; ex parte Wheeler v Halse (1994) 54 FCR 166 at 170. “…
Worrell v Westpac Banking Corporation [1994] FCA 472
Citation 32 (Para 19)

…Act. French J observed that the words of Deane J about the width of the discretion under s.178 were approved by the Full Court in Re Dingle; ex parte Westpac Banking Corporation v Worrell (1993) 47 FCR 478 at 485. The Full Court emphasised that the powers under s.178, like those under s.30 of the Act, are discretionary and “it should not be t…
McGoldrick v Official Trustee in Bankruptcy [1993] FCA 961
Citation 33 (Para 20)

…This approach to s.178 was endorsed in McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547 at 552. Under s.178 the court’s powers are conditioned by reference to the concepts of justice and equity and as a result the conduct of an applicant for relief such as considerable delay in exercising its rights can…
Re Dingle; Westpac Banking Corporation v Worrell [1993] FCA 619
Citation 34 (Para 19)

…of Deane J about the width of the discretion under s.178 were approved by the Full Court in Re Dingle; ex parte Westpac Banking Corporation v Worrell (1993) 47 FCR 478 at 485. The Full Court emphasised that the powers under s.178, like those under s.30 of the Act, are discretionary and “it should not be thought that…
Re Gillies [1993] FCA 409
Citation 35 (Para 11)

…ains unexpended will be part of the property of the bankrupt that vests in the trustee: Re Gillies; ex parte Official Trustee in Bankruptcy v Gillies (1993) 42 FCR 571 at 577; Trustee of the property of O’Reilly v Law Society of New South Wales (2001) 110 FCR 574 at 577.…
Adsett, N. v Berlouis, H [1992] FCA 549
Citation 36 (Para 29)

…ith respect to such a request. The duties of a trustee in bankruptcy were referred to in some detail by a Full Court in Adsett v Berlouis (1992) 37 FCR 201 at 208-9. A trustee has a dual function: to administer the estate in the interests of the creditors and the bankrupt; and to exercise the powers given and duties…
Adsett v Berlouis [1992] FCA 368
Citation 37 (Para 29)

…e trustee’s duty with respect to such a request. The duties of a trustee in bankruptcy were referred to in some detail by a Full Court in Adsett v Berlouis (1992) 37 FCR 201 at 208-9. A trustee has a dual function: to administer the estate in the interests of the creditors and the bankrupt; and to exercise the powers given…
Re Nguyen; Ex parte Official Trustee in Bankruptcy [1992] FCA 150
Citation 38 (Para 24)

…policy of the Bankruptcy Act for the trustee to assign the cause of action back to the bankrupt: Re Nguyen; ex parte Official Receiver in Bankruptcy (1992) 35 FCR 320.…
Gray v Clout [1990] FCA 759
Citation 39 (Para 33)

…Gray v Clout (1990) 27 FCR 141 is authority for the proposition that there is no universal right to reasons from the trustee.…
Muir, Brian Registrar in Bankruptcy v Bradley, David Geoffrey [1983] FCA 330
Citation 40

…e (Dec’d) [1958] 1 Ch 615 Re Whitley; Lloyds Bank Ltd v Whitley [1962] 1 WLR 922 Re Ladyman (1981) 55 FLR 383 Registrar in Bankruptcy v Bradley (1983) 72 FLR 231 Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 Gao v The Official Trustee in Bankruptcy [2003] FCAFC 84 Re Gault; Gault v Law (1981) 57 FLR 1…
Mannigel v Aitken [1983] FCA 206
Citation 41 (Para 3)

…lised to pay a dividend to creditors; . . . taking appropriate steps to recover property for the benefit of the estate.” In Mannigel v Aitken (1983) 77 FLR 406 Smithers J described the standard of conduct expected of trustees in bankruptcy in the performance of their duties to bankrupt estates (at 408-409): “In the…
Re Gault; Gault v Law [1981] FCA 167
Citation 42 (Para 25)

…In Re Gault; Gault v Law (1981) 57 FLR 165 it was held by Ellicott J that a court is not obliged to order an inquiry pursuant to s.179 Bankruptcy Act unless it is satisfied that sufficient grounds in support of the application to hold the inquiry have been made out. In considering whether to order an inquiry the cou…
Tyndall, in the matter of [1977] FCA 71
Citation 43 (Para 17)

…In Re Tyndall (1977) 30 FLR 6 at 9-10 Deane J said: “In my view, the wording of s. 178 of the Act is such as to confer upon the court the widest possible discretion as to the appropriate order which should be made in the particular case and is quite inconsistent with the approach that, upon an application made pur…
Cox v Journeaux (No 2) [1935] HCA 48
Citation 44 (Para 41)

…erence to pain felt by the bankrupt in respect of her or his body, mind or character: Beckham v Drake (1849) 2 HLC 579 at 604; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721.…
Pitts v La Fontaine (Constantinople) [1880] UKPC 27
Citation 45 (Para 4)

…ully instituted or defended by the trustee is a matter distinct from the trustee’s entitlement to recoupment out of the bankrupt’s estate (citing Pitts v La Fontaine (1880) 6 App Cas 482 at 486; Re Driller (1972) 21 FLR 159 at 175. It is a personal obligation, whereupon the question separately arises in the administration of…
Re Cirillo; Ex parte Official Trustee in Bankruptcy [1996] FCA 1443
Citation 46 (Para 28)

…In Re Cirillo; ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576 Branson J said at [24 – 25]: “In my view, in considering the issue of sale of the property of a bankrupt, including any sale which involves the assignment of a cause of action, the principal duty of the trustee is to consider the interests of t…
Cummings v Claremont Petroleum NL [1996] HCA 19
Citation 47 (Para 16)

…Section 178 of the Act confers a supervisory jurisdiction over the conduct of the trustee: Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 133. There have been many expressions of the approach the court should take under s.178.…
Beckham v Drake 9 ER 1213
Citation 48 (Para 41)

…e trustee where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of her or his body, mind or character: Beckham v Drake (1849) 2 HLC 579 at 604; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721.…
35 ER 781 35 ER 781
Citation 49 (Para 13)

…f the applicant’s account has gone down to $44,902.77. However, applying an inelegant analogy of the rule in Clayton’s case (1816) 1 Merc. 572; 35 ER 781, I would be prepared to accept that the applicant first used monies that were already in the account before drawing on the two deposits to which reference…
[1996] 1 AC 243 [1996] 1 AC 243
Citation 50 (Para 29)

…rmit a particular course to be taken is a relevant consideration to weigh: Seear v Lawson (188) 15 Ch D 426 at 433; Stein v Black [1996] 1 AC 243. Those cases dealt with the question as to whether a trustee should have pursued litigation commenced by the bankrupt when they had no funds to do so, but the principle…

Legislation Cited

Bankruptcy Act 1966 (Cth) 116, 134, 135, 170, 176, 178, 179, 19, 3...
15 mentions (from Para 9)
Legal Profession Act 2004 (Vic) 319, 325
3 mentions (from Para 7)
Bankruptcy Act 1869 (UK) 25
2 mentions (from Para 25)