FEDERAL COURT OF AUSTRALIA
Van der Velde v Ng [2008] FCA 480
TERRY VAN DER VELDE AND DAVID STIMPSON AND RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST v KYM HON YOKE NG, THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT) AND RAMS MORTGAGE CORPORATION LIMITED ABN 48 065 912 932
QUD 405 OF 2007
DOWSETT J
4 FEBRUARY 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 405 OF 2007
BETWEEN:
TERRY VAN DER VELDE AND DAVID STIMPSON
First ApplicantRIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST
Second ApplicantAND:
KYM HON YOKE NG
First RespondentTHE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT)
Second RespondentRAMS MORTGAGE CORPORATION LIMITED ABN 48 065 912 932
Third Respondent
JUDGE:
DOWSETT J
DATE:
4 FEBRUARY 2008
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In both Fraser v Deputy Commissioner ofTaxation& Official Trustee (1996) 69 FCR 99 and Scott v Bagshaw (1999) 95 FCR 37, the relevant applicant was seeking to enforce a provable debt although, in the latter case, that may not have appeared from the statement of claim. In those circumstances, s 58(3) of the Bankruptcy Act 1966 (Cth) clearly applied.
That is not the present case, as I understand it. In those circumstances, I am of the view that leave is not necessary. However, should in the course of the trial it emerge otherwise, we can revisit the question.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 14 April 2008
Solicitor for the First Applicant: Mills Oakley Counsel for the Second Applicant: The Second Applicant did not appear Counsel for the First Respondent: The First Respondent did not appear Solicitor for the Second Respondent: Rodgers, Barnes & Green Counsel for the Third Respondent: Mr D S Piggott Solicitor for the Third Respondent: Mallesons Stephen Jacques Date of Hearing: 4 February 2008 Date of Judgment: 4 February 2008
- AGLC
- Van der Velde v Ng [2008] FCA 480
- Case
- [2008] FCA 480
- Decision Date
CaseChat Overview and Summary
The court examined the applicants' circumstances and found that the situation did not align with the precedents set in Fraser v Deputy Commissioner of Taxation and Scott v Bagshaw, where leave was required to enforce a provable debt. The court concluded that the applicants did not need leave to enforce the debt, but noted that the issue could be revisited if it became relevant during the trial. The decision was based on the specific facts and circumstances of the case, and the court's interpretation of the relevant statutory provisions.
The court granted the applicants permission to enforce the debt without the need for leave, subject to the condition that if the circumstances changed during the trial, the need for leave could be reassessed. The final orders reflected this decision, allowing the applicants to proceed with their claim against the respondents.
In summary, the Federal Court of Australia held that the applicants did not require leave to enforce a provable debt under section 58(3) of the Bankruptcy Act 1966 (Cth), based on the specific facts and circumstances of this case. The court's decision allowed the applicants to proceed with their claim against the respondents, subject to the condition that the need for leave could be reassessed if circumstances changed during the trial.
Orders
Orders of the court
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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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