Re Coyle

Case [1993] FCA 244


Re: ALEXANDER GEORGE COYLE and SIDNEY MERLE COYLE
Debtors Petition No. 783 of 1991
FED No. 244
Number of pages - 13
Bankruptcy - Practice and Procedure
(1993) 42 FCR 72
(1993) 120 ALR 527

COURT

IN THE FEDERAL COURT OF AUSTRALIA


BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
Drummond J (1)
CATCHWORDS

Bankruptcy - Application for annulment of debtor's petition to enable bankrupt to pursue cause of action for benefit of creditors - support by creditors for annulment application - order for annulment discretionary - approval of creditors not decisive - no satisfactory proposal before court by debtor to apply proceeds of action for benefit of creditors - when debtor remains insolvent, discretion to grant annulment should in general only be exercised where there is evidence before the court which shows that debtor would be able to obtain annulment under s. 74 of the Bankruptcy Act.

Practice and Procedure - Cause of action vested in trustee in bankruptcy - action commenced by bankrupt after date of bankruptcy - action properly constituted if annulment granted.

Words and Phrases - s. 153B of the Bankruptcy Act - "ought not to have been presented" - "ought not to have been accepted by the Registrar".

Bankruptcy Act 1966 - ss. 153A, 153B

Cockerill and Ors. v Worrell and Anor. (Drummond J, unreported, 9 March, 1992)

In Re A Debtor (1971) 1 WLR 261

In Re A Debtor (1971) 1 WLR 1212

Re Goddard (Pincus J, unreported, 14 November, 1986)

Re Goo Tuck (1892) 2 BC (NSW) 95

In Re Hester (1859) 22 QBD 632

Ingall v Moran (1944) KB 160

Re McCormack (Pincus J, unreported, 6 April, 1990)

The Metropolitan Bank Ltd. v Pooley (1885) 10 App. Cas. 210

Minister of State for the Interior v R.T. Company Pty. Ltd. (1962) 107 CLR 1

Re Mottee; Ex parte Mottee v The Official Receiver (1977) 29 FLR 406 at 412

Oates v Commissioner of Taxation (1990) 27 FCR 289

Re Oates; Ex parte Deputy Commissioner of Taxation (Cwth) (1987) 17 FCR 402

Sandell v Porter (1966) 115 CLR 666

Re Story; Ex parte Boulton (Drummond J, unreported, 4 June, 1992)

Story v Boulton (Full Federal Court, unreported, 18 September, 1992)

Re Alexander George Coyle and Sidney Merle Coyle

HEARING

BRISBANE, 28 August 1992

#DATE 16:4:1993

Counsel for the applicant: A.J.P. Collins

Solicitors for the applicant: Wellner Poole and Gray

Solicitors for the trustee: Lynch and Co.

Counsel for the intervener: P.D. McMurdo

Solicitors for the intervener: Clayton Utz

ORDER

The Court orders that:

1. The application for annulment is dismissed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

DRUMMOND J This is an application to annul a bankruptcy which commenced on 15 April, 1991, upon acceptance by the Registrar of the debtors' petition.

  1. The annulment application is brought to enable the debtors to prosecute an action which they commenced in the Supreme Court on 5 July, 1991 against their former solicitor. According to…

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Details
AGLC
Re Coyle, A.G. & Anor. [1993] FCA 244 ((1993) 42 FCR 72; (1993) 120 ALR 527)
Case
[1993] FCA 244
Decision Date

CaseChat Overview and Summary

In the matter of Re Coyle, the respondent, a bankrupt, applied to the court for the annulment of his bankruptcy petition. The primary reason behind the application was to allow the bankrupt to pursue a cause of action on behalf of the creditors, with the support of the creditors for the annulment application. The court was tasked with determining whether the discretion to grant annulment should be exercised and whether the approval of creditors was a decisive factor. Furthermore, the court needed to assess whether there was a satisfactory proposal before it by the debtor to apply the proceeds of the action for the benefit of the creditors, and if the bankrupt remained insolvent, whether the court should generally only exercise its discretion to grant annulment when there was evidence showing that the debtor would be able to obtain annulment under section 74 of the Bankruptcy Act.

The court examined the relevant legal principles and concluded that the approval of creditors was not decisive in determining whether to grant the annulment. Additionally, the court found that no satisfactory proposal had been presented by the debtor to apply the proceeds of the action for the benefit of creditors. The court emphasised that when the debtor remained insolvent, the discretion to grant annulment should generally only be exercised where there was evidence before the court showing that the debtor would be able to obtain annulment under section 74 of the Bankruptcy Act. In this instance, the court found that such evidence was not present.

Consequently, the court dismissed the application for annulment. The court's decision was based on the lack of a satisfactory proposal by the debtor to apply the proceeds of the action for the benefit of creditors and the absence of evidence showing that the debtor would be able to obtain annulment under section 74 of the Bankruptcy Act. The court's reasoning and decision were in line with the legal principles governing annulment applications in bankruptcy cases.

Orders

Orders of the court

The Court orders that:

1. The application for annulment is dismissed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

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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