Moss v Eaglestone

The appeal concerned a bankrupt, Mr Eaglestone, who sought to bring an action against his former solicitor, Ms Moss, for negligence. The dispute arose from Ms Moss's alleged failure to include a claim for defamation in a statement of claim in prior proceedings. The primary legal issue before the Court of Appeal was whether Mr Eaglestone, as a bankrupt, was entitled to maintain this action in his own name, or if the cause of action had vested in the Official Trustee in Bankruptcy pursuant to the *Bankruptcy Act 1966* (Cth).

The court was required to determine the proper characterisation of Mr Eaglestone's claim against his former solicitor. Specifically, it needed to ascertain whether the claim constituted a "personal injury or wrong done to the bankrupt" within the meaning of section 60(4) of the *Bankruptcy Act 1966* (Cth), which would permit the bankrupt to maintain the action personally. This involved considering whether the loss of a chance of a successful outcome in the defamation proceedings, due to the solicitor's alleged negligence, fell within the scope of personal injury or wrong.

The Court of Appeal reasoned that the claim against the solicitor should be characterised as a personal wrong done to the bankrupt, rather than a mere chose in action that vested in the Official Trustee. Applying principles derived from cases such as *Beckham v Drake* and *Cox v Journeaux (No 2)*, the court held that a claim for damages arising from a solicitor's negligence in conducting litigation, where the underlying cause of action was personal in nature, was itself a personal wrong. Therefore, Mr Eaglestone was entitled to maintain the action in his own name.

The appeal was allowed, and the orders of the Supreme Court were set aside. The statement of claim was struck out with liberty to replead, and the notice of motion was otherwise dismissed. The respondent was ordered to pay the appellant's costs of the appeal.