Freeman v Joiner

[2005] FCA 547

FEDERAL COURT OF AUSTRALIA

Freeman v Joiner [2005] FCA 547

BANKRUPTCY – assignment of causes of action – refusal by Trustees to consider request for assignment unless provided with sufficient funds to obtain legal advice on the legality of assignment – no funds forthcoming – whether Trustees’ refusal to consider request was incorrect – whether justice and equity required a different decision

Bankruptcy Act 1966 (Cth) s 178

Freeman v National Australia Bank Limited [2004] FCAFC 318 considered
Freeman v National Australia Bank Ltd [2003] FCA 1233 cited
Willoughby v Official Trustee in Bankruptcy [2001] FCA 753 applied
Re Bankrupt Estate of Hudson [2004] 2 ABC(NS) 69 cited
Healey v Prentice (No 2) [2000] FCA 1598 referred to

LYNTON NOEL CHARLES FREEMAN v MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES FOR THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN

QUD65 OF 2005

TAMBERLIN J
SYDNEY (HEARD IN BRISBANE)
6 MAY 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD65 OF 2005

BETWEEN:	LYNTON NOEL CHARLES FREEMAN APPLICANT
AND:	MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES FOR THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	6 MAY 2005
WHERE MADE:	SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD65 OF 2005

BETWEEN:	LYNTON NOEL CHARLES FREEMAN APPLICANT
AND:	MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES FOR THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	6 MAY 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

1. This is an application under s 178 of the Bankruptcy Act 1966 (Cth) (“the Act”) seeking orders that the respondents (“the Trustees”) assign to the applicant two separate actions in which he is involved.

2. Section 178 provides that if the bankrupt is affected by an omission or decision of the trustee an application may be made to the Court to make such order as the Court thinks just and equitable. The Court’s power is discretionary and broadly-based but it must be exercised in a judicial manner, that is to say, the Court must have regard to the particular facts of the application including the history of the matter, the function of the trustee and commercial reality.

3. On 2 December 2004, the applicant wrote to the Trustees requesting that they assign actions S4013 of 1998 and S2339 of 2003 (“the actions”) to him.  By letter dated 3 March 2005, the applicant was notified that the Trustees had decided not to consider his request for an assignment of the actions until funds in the sum of $6,800.00 were received by the Trustees as a contribution to anticipated legal costs.  In substance, there has been an omission by the Trustees to consider and decide the request by the applicant. 

4. The payment of anticipated legal costs was required…