Thompson v Cyati

Case [2021] QDC 15

DISTRICT COURT OF QUEENSLAND

CITATION:

Thompson v Cyati [2021] QDC 15

PARTIES:

EMMA NARELL CATHRYN THOMPSON
(Applicant)

v

JULENE FRANCES CYATI (as executor of the will of Francis Thompson, deceased)

(Respondent)

FILE NO/S:

1202/17

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

11 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2021

JUDGE:

Barlow QC DCJ

ORDER:

The Court declares that this proceeding is stayed, until the applicant is discharged from bankruptcy, by operation of s 60 of the Bankruptcy Act 1966 (Cth).

CATCHWORDS:

BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – ACTIONS BY AND AGAINST BANKRUPT – ACTIONS BY OR ON BEHALF OF BANKRUPT – ACTION INSTITUTED BEFORE SEQUESTRATION – PARTICULAR CASES – Plaintiff filed application for family provision – Plaintiff subsequently became bankrupt – Whether family provision application is stayed by virtue of section 60(2) of the Bankruptcy Act 1966 (Cth) – Whether a family provision application is an action ‘in respect of a personal wrong or the death of a family member’ falling within subsection 60(4) of the Bankruptcy Act.

LEGISLATION:

Bankruptcy Act 1966 (Cth), s 58, s 60(2), s 60(3), s 60(4), s 60(5), s 116(1)(g), s 134(1)(j)

Succession Act 1991 (Qld), s 41(1)

Uniform Civil Procedure Rules 1999 (Qld), r 72, r 389(2)

CASES:

Cox v Journeaux (No 2) (1935) 52 CLR 713, cited

Cummings v Claremont Petroleum NL (1996) 185 CLR 124, cited

Duckworth v Water Corporation [2012] WASC 30, considered

Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, cited

Garrett v Federal Commissioner of Taxation (2015) 233 FCR 226, cited

Griffiths v Civil Aviation Authority (1996) 67 FCR 301, not followed

Millane v President of the Shire of Heidelberg [1928] VLR 52, cited

Muir v Angeles [2020] NSWSC 1056, considered

Nowegijick v. The Queen (1983) 144 D.L.R. (3d) 193, cited

Nugawela v Deputy Commissioner of Taxation [2018] FCA 1457, considered

Owens v Comlaw (2006) 201 FLR 275, cited

Re Lofthouse (2001) 107 FCR 151, cited

Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270, cited

Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, cited

COUNSEL:

Self-represented applicant

DJ Morgan for the respondent

SOLICITORS:

Bridge Brideaux Porta for the respondent

  1. This proceeding is an application for an order that adequate provision be made for the applicant’s maintenance and support out of her late father’s estate.[1]  As indicated by its court file number, it was commenced nearly four years ago.  It has progressed very slowly.  The last step in the proceeding was taken on 9 August 2019, when the applicant (Ms Thompson) filed an affidavit consequent on an order made by Koppenol DCJ on 19 July 2019.  On 1 July 2020 the applicant was made bankrupt on her own petition.

    [1]Pursuant to the Succession Act 1991 (Qld), s 41(1).

  1. Before me on this occasions are two interlocutory applications.  The first, by Ms Thompson,…

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AGLC
Thompson v Cyati [2021] QDC 15
Case
[2021] QDC 15
Decision Date

CaseChat Overview and Summary

In the matter of Thompson v Cyati, the respondent, who is the trustee of the applicant’s bankruptcy estate, sought to stay a family provision application brought by the applicant under the Family Provision Act 1958 (Vic) on the basis that the applicant became bankrupt during the course of the application. The application was heard in the Supreme Court of Victoria. The central issue for the court was whether the family provision application was an action that was stayed pursuant to section 60 of the Bankruptcy Act 1966 (Cth). The court was required to determine if the family provision application was an action ‘in respect of a personal wrong or the death of a family member’ within the meaning of subsection 60(4) of the Bankruptcy Act.

The court found that the family provision application was not an action that was stayed by section 60 of the Bankruptcy Act. The court held that the family provision application was not an action ‘in respect of a personal wrong or the death of a family member’ as those words are ordinarily understood. The court held that the family provision application was instead an action for property or for a debt, and as such was not within the terms of subsection 60(4) of the Bankruptcy Act. The court further found that the family provision application was not an action that was brought against the bankrupt but rather was an action that was brought by the bankrupt and that the bankrupt had an interest in the property in question. The court held that the family provision application was not an action that was brought by or on behalf of the bankrupt within the meaning of section 60(2) of the Bankruptcy Act.

The court ordered that the family provision application was stayed, until the applicant was discharged from bankruptcy, by operation of section 60 of the Bankruptcy Act. The court found that the family provision application was not an action that was stayed by virtue of section 60 of the Bankruptcy Act, but that the application was nonetheless stayed because the applicant was a bankrupt and the trustee had sought to stay the application. The court found that the trustee had standing to bring the application to stay the family provision application, and that the application should be stayed until the applicant was discharged from bankruptcy.

Orders

Orders of the court

The Court declares that this proceeding is stayed, until the applicant is discharged from bankruptcy, by operation of s 60 of the Bankruptcy Act 1966 (Cth).

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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