Vince v Sellers - [2004] FMCA 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VINCE v SELLERS & ORS

[2004] FMCA 564

BANKRUPTCY – Application by trustee to extend time to continue proceedings – ss.60(3) and 33(1) Bankruptcy Act 1966 – interests of creditors paramount.

Bankruptcy Act 1966, ss.33(1), 60(3)

Abeyratne v State of Victoria [1998] 1676 FCA (18 December 1998)

Applicant:

PETER ROBERT VINCE (AS TRUSTEE OF BANKRUPT ESTATE OF DAVID NEIL LOCKWOOD, A BANKRUPT)

Respondents:

KENNETH STEWART SELLERS, MICHAEL JAMES HUMPHRIS and LAURENCE ANDREW FITZGERALD

File No:

MLG 957 of 2003

Delivered on:

9 August 2004

Delivered at:

Melbourne

Hearing Date:

9 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr J.M. Selimi

Solicitors for the Applicant:

Serry White & Co

Counsel for the First Respondent:

Mr R Smith

Solicitors for the First Respondent:

Abbott Stillman & Wilson

Solicitor for the Second and Third Respondents:

Mr D Andrews

Solicitors for the Second and Third Respondents:

Holding Redlich

ORDERS

The time for the Applicant as Trustee of the Bankrupt Estate of David Neil Lockwood to make an election in writing to prosecute or discontinue proceedings by the Bankrupt against the Respondents in Action Number 2016/2004 (F5668) in the Commercial List of the Supreme Court of Victoria be extended to 9 September 2004.
The Respondents' costs be paid out of the Bankrupt Estate of David Neil Lockwood.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 957 of 2003

PETER ROBERT VINCE (AS TRUSTEE OF BANKRUPT ESTATE OF DAVID NEIL LOCKWOOD)

Applicant

and

KENNETH STEWART SELLERS and OTHERS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by Peter Robert Vince (the Trustee) by application filed 22 July 2004 seeking to extend the time in which to continue proceedings under ss.60(3) and 33(1) of the Bankruptcy Act 1966 (the Act). The application is supported by an affidavit of the applicant sworn 22 July 2004 and the order sought is that the time for the applicant as trustee of the bankrupt estate of David Neil Lockwood (the Bankrupt) to make an election in writing to prosecute or discontinue proceedings by the bankrupt against the respondent in action number 2016 of 2004 in the commercial list in the Supreme Court of Victoria be extended for such further time as the court deems appropriate.
In the affidavit in support of the application the Trustee deposes to the background information in relation to this application and it is noted that he is the trustee of the bankrupt estate of the bankrupt. The bankrupt was made bankrupt upon presentation of a debtor's petition on 4 June 2004. At that stage two others were appointed as trustees in the bankruptcy. Prior to the bankrupt becoming bankrupt, the Trustee had signed a consent to act as trustee in relation to a creditors petition brought against the bankrupt. It is not necessary for me to refer to the details of that save to say that the Trustee has indicated that in a proper consideration of proceedings which are pending in the Supreme…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vince v Sellers

Details

AGLC: Vince v Sellers [2004] FMCA 564
Case: [2004] FMCA 564
Decision Date: 9 August 2004

CaseChat Overview and Summary

Vince, as Trustee of the Bankrupt Estate of David Neil Lockwood, filed an application against Sellers and others, seeking an extension of time to make an election to either prosecute or discontinue certain legal proceedings. The dispute arose out of proceedings in the Commercial List of the Supreme Court of Victoria, where the bankrupt, David Neil Lockwood, had initiated a claim against the respondents. The application was heard by the court, which was required to determine whether an extension of time was warranted and, if so, to what extent.

The primary legal issues before the court were whether the trustee had a valid reason for the delay in making the election, and if such an extension would be in the best interest of the bankrupt estate. The court had to weigh the potential prejudice to the respondents against the trustee's reasons for the delay, and consider whether the extension would serve the interests of justice.

In its reasoning, the court found that the trustee had provided satisfactory explanations for the delay and that an extension would not unfairly prejudice the respondents. The court concluded that justice required the extension to allow the trustee to make an informed decision regarding the continuation of the proceedings. Accordingly, the court granted the application, extending the time for the trustee to make an election to 9 September 2004, and ordered that the respondents' costs be paid out of the bankrupt estate.

Orders

Orders of the court

The time for the Applicant as Trustee of the Bankrupt Estate of David Neil Lockwood to make an election in writing to prosecute or discontinue proceedings by the Bankrupt against the Respondents in Action Number 2016/2004 (F5668) in the Commercial List of the Supreme Court of Victoria be extended to 9 September 2004.

The Respondents' costs be paid out of the Bankrupt Estate of David Neil Lockwood.

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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