Gillies v Forrest

[2014] NSWSC 648

Supreme Court

New South Wales

Medium Neutral Citation:

Gillies v Forrest [2014] NSWSC 648

Hearing dates:

22 May 2014

Decision date:

22 May 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Plaintiff's proceedings dismissed.

2. Plaintiff to pay Defendant's costs of the proceedings.

Catchwords:

PROCEDURE - proceedings claiming interest in land and damages or debt - loans alleged to be made before plaintiff bankrupted - plaintiff fails to notify trustee of claim - discharge from bankruptcy - whether cause of action re-vests in plaintiff - proceedings summarily dismissed

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules

Category:

Principal judgment

Parties:

Darrin Michael Gillies (Plaintiff)
Melissa Kate Forrest (First Defendant)
Stephen Forrest (Second Defendant)

Representation:

Counsel:
No appearance (Plaintiff)
B Levet (First and Second Defendants)
Solicitors:
Self represented (Plaintiff)
Gibbins Law Firm (First and Second Defendants)

File Number(s):

2012/231617

Judgment

1. The Plaintiff commenced proceedings at some time in 2012 seeking a declaration that he held a 50 per cent interest in a property in Anna Bay as a tenant in common with the first Defendant. He also sought damages for breach of contract and equitable damages against both Defendants. The pleadings however, suggested that what he was actually seeking was repayment of moneys that he had paid, he said, towards development of this property. The last form of the statement of claim was filed 5 December 2013. I note that the Plaintiff, at the time that was filed, was acting for himself.

1. The Plaintiff was bankrupted on 4 November 2006. He was discharged in the ordinary course on 4 November 2009. The moneys were said to have been paid in 2002 to 2004 or thereabouts. On the Plaintiff's being bankrupted, all property including what he claimed in the present proceedings vested in his trustee in bankruptcy: s 58 Bankruptcy Act 1966 (Cth). In addition, s 132 provides:

(1) Subject to this section, and to section 158 where a trustee is appointed by the creditors, the property of the bankrupt passes to and vest in the trustee so appointed on the day on which the appointment takes effect.

(2) Subject to this section, the property of the bankrupt passes from trustee to trustee and vests in the trustee for the time being during his continuance in office... without any conveyance, assignment or transfer."

1. S 129AA of the provides:

129AA Time limit for realising property

(1) This section applies only to:

(a) property (other than cash) that was disclosed in the bankrupt's statement of affairs; and

(b) after-acquired property (other than cash) that the bankrupt discloses in writing to the trustee within 14 days after the bankrupt becomes aware that the property devolved on, or was acquired by, the bankrupt.

In this subsection, "cash" includes amounts standing to the credit of a bank account or similar account.

(2) If any such property is still vested in the trustee immediately before the revesting time, then it becomes vested in the bankrupt at the revesting time by force of this section.

1. In his Statement of Affairs declared on 2 November 2006, the Plaintiff did not identify any moneys as being owing to him. Section 31 of the standard form Statement of Affairs asks, "Do you have any debts owed to you?" and the Plaintiff said "no". It is a reasonable inference therefore, that he did not disclose the property which now forms the basis of the claim in the Amended Statement of Claim.

1. Section 129AA, which has the effect that property vested in the trustee at the time of his discharge revests in the bankrupt or former bankrupt, only applies to property that was disclosed in the Statement of Affairs. The result is that, if this property was vested in the Plaintiff prior to his bankruptcy, it remains vested in the trustee. That means the Plaintiff has no standing to bring or to maintain the present proceedings.

1. In that regard, he does not disclose a reasonable cause of action and it may be concluded that the proceedings are an abuse of process for the purposes of r 13.1 UCPR. In those circumstances, I make these orders:

1. The Plaintiff's proceedings are dismissed.

2. The Plaintiff is to pay the Defendant's costs of the proceedings.

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Decision last updated: 22 May 2014