Wakeling v Wade

The case of Wakeling v Wade involves parties seeking declarations regarding the ownership of various causes of action in the context of bankruptcy proceedings. The matter was heard in the Federal Court of Australia, where the primary issue revolved around whether certain causes of action vested in the trustee in bankruptcy after the discharge of the bankrupt, Ms Wade. The case also examined the enforceability of assignments of these causes of action to Ms Wade or her son, Mr Trnka, and whether these actions were held on trust for Mr Trnka.

The court was required to decide several legal issues. Firstly, it had to determine whether the various causes of action vested in the trustee in bankruptcy, Mr Leroy, upon his appointment. Secondly, the court had to assess the enforceability of the deeds of assignment that purportedly transferred the causes of action to Ms Wade or Mr Leroy. Thirdly, the court had to consider whether the causes of action were held on trust by Ms Wade for Mr Trnka, thereby preventing them from vesting in the trustee in bankruptcy.

The court found that the purported assignments of the causes of action were ineffective because they involved bare causes of action in tort and the purported assignees did not have any genuine commercial interest in those actions. Consequently, the causes of action never vested in Ms Wade or Mr Leroy and remained with the original companies until their deregistration, at which point they vested in the Australian Securities and Investments Commission. The court also found that there was no evidence to establish that Ms Wade held the causes of action on trust for Mr Trnka. As a result, the causes of action vested in Mr Leroy upon his appointment as trustee in bankruptcy and have continued to vest in him since.

The court made a declaration to the effect that the relevant causes of action vested in Mr Leroy upon his appointment and have continued to vest in him ever since. The court ordered that Mr Wakeling file and serve proposed short minutes of orders within seven days, along with a written submission limited to four pages in support thereof. Other parties were given 14 days to file and serve any written submissions in reply, also limited to four pages.