Nelson v Thompson

[2021] FCA 1055

FEDERAL COURT OF AUSTRALIA

Nelson v Thompson [2021] FCA 1055  

File number(s):

QUD 237 of 2021

Judgment of:

DOWNES J

Date of judgment:

1 September 2021

Catchwords:

BANKRUPTCY AND INSOLVENCY – claim brought against former solicitor – solicitor became bankrupt – whether leave should be granted to take a step in a proceeding pursuant to s 58(3) Bankruptcy Act 1966 (Cth) – application allowed.

Legislation:

Bankruptcy Act 1966 (Cth) ss 5, 58(3), 82

Cases cited:

7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328

Allanson v Midland Credit Ltd (1977) 30 FLR 108; [1977] FCA 66

Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234; [2005] HCA 67

GFIN Pty Limited v Gooden, in the matter of GFIN Pty Limited (No 2) [2020] FCA 1440

Lovell v Penkin (A Bankrupt) and Another (2008) 101 ALD 335; [2008] FCA 637

Nelson v Thompson [2020] WASC 261

The Owners – Strata Plan 80647 v WFI Insurance Limited and another (2015) 299 FLR 77; [2015] NSWSC 1161

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

25

Date of hearing:

The application was determined on the papers

Counsel for the Applicant:

Mr DJ Garnsworthy

ORDERS

QUD 237 of 2021

BETWEEN:

PETER STANLEY NELSON

Applicant

AND:

JARROD ROBERT THOMPSON

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

ORDER MADE BY:	DOWNES J
DATE OF ORDER:	1 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.To the extent such leave is necessary by reason of s 58(3) of the Bankruptcy Act 1966 (Cth), the applicant, Peter Nelson, has leave to continue and take fresh steps in proceedings instituted by him in the Supreme Court of Western Australia against Jarrod Thompson in action CIV 2404 of 2015 (the proceedings). 

2.The granting of leave in the preceding paragraph is conditional upon the applicant providing a written undertaking to this Court within 14 days that:

(a)he will not seek final relief in the proceedings without having given seven days’ notice to the office of the Official Trustee in Bankruptcy;

(b)he will not oppose any application by the Official Trustee in Bankruptcy to be joined or heard in the proceedings.

3.Such leave does not extend to the taking of any step to enforce any judgment obtained in the proceedings without leave first being obtained from this Court. 

4.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

INTRODUCTION

1. The applicant, Mr Peter Nelson, is the plaintiff in proceedings in the Supreme Court of Western Australia, being matter number CIV 2404 of 2015 (the proceedings).

2. The proceedings were commenced on 2 September 2015. 

3. The defendant to the proceedings is Mr Jarrod Thompson who was the former solicitor of the applicant (Mr Thompson).

4. The claim brought against Mr Thompson stems from the applicant and his former business partner engaging Mr Thompson to prepare…