Wilcox v Chapple

[2024] NSWSC 82

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilcox v Chapple [2024] NSWSC 82

Hearing dates:

2 February 2024

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Plaintiff’s notice of motion dismissed; plaintiff to pay defendant’s costs.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Plaintiff bankrupt and trustee abandoned action — No issue of principle

Legislation Cited:

Bankruptcy Act 1966 (Cth) s 60

Cases Cited:

Wilcox v Chapple [2021] NSWSC 860

Wilcox v Chapple (No 2) [2021] NSWSC 1607

Category:

Procedural rulings

Parties:

Benjamin Wilcox (Plaintiff)
John Francis Chapelle (Defendant)

Representation:

Counsel: P Afshar (Defendant)

Solicitors: Plaintiff (self-represented)
Newnhams Solicitors (Defendant)

File Number(s):

2019/131798

Publication restriction:

None

EX TEMPORE JUDGMENT (REVISED)

1. These proceedings have been on foot since 2019. The plaintiff, Mr Ben Wilcox (who appeared in person today with the assistance of his accountant, Mr Danis) sues the defendant, Mr Chapple (for whom Mr P Afshar of Counsel appeared today) as executor of the estate of his (Mr Wilcox’s) late mother for alleged breaches of contract and for devastavit.

2. After difficulties with a proposed amended form of the plaintiff’s claim were considered by Robb J (Wilcox v Chapple [2021] NSWSC 860), a new pleading conformable with his Honour's reasons was ultimately provided and the matter has been continuing over a considerable period of time through the interlocutory processes of the Court. The proceedings most recently came before me in the Applications List on 8 December 2023 pursuant to a motion filed on 9 November 2023 by the defendant for the dismissal of the proceedings with costs.

3. That dismissal was sought on the basis that Mr Wilcox had become a bankrupt on 14 September 2023 and that, pursuant to s 60 of the Bankruptcy Act 1966 (Cth), his trustee in bankruptcy had abandoned the action. There was no dispute that the causes of action pursued by Mr Wilcox were causes of action that had vested in his trustee and could not otherwise be pursued by Mr Wilcox pursuant to s 60(4) of the Act.

4. At the conclusion of the hearing on the last occasion, the Court’s orders were:

1. Notes that the plaintiff is bankrupt, and his Trustee has confirmed that the Trustee abandons the action.

2. The proceedings are dismissed.

3. The plaintiff is to pay the defendant’s costs of the proceedings.

4. Stays orders 2 and 3 up to and including 2 February 2024.

5. Liberty to any party to relist the proceedings in the Applications List on 2 February 2024 on 3 days’ notice.

5. The only reason why I stayed the operative orders up until today was because I was told by the solicitor then appearing for Mr Wilcox (from the bar table and without evidence, matters which I record without intending any criticism of the solicitor) that there was some prospect his client's bankruptcy would be shortly annulled. Unbeknownst to me at the time, Robb J had, on an earlier occasion, adopted a similar approach of dismissing Mr Wilcox’s proceedings with a stay to allow Mr Wilcox one last chance (of which he availed himself) to prosecute his claim (Wilcox v Chapple (No 2) [2021] NSWSC 1607).

6. By a motion filed on 29 January 2024, Mr Wilcox has sought an order that the stay which I ordered on the last occasion be extended pending various events occurring up to and including the annulment of his bankruptcy. For the reasons which follow, that relief will be refused. Other orders are sought which I do not need to set out here because, with respect to Mr Wilcox, they are not orders of the kind the Court can or would make.

7. Contrary to the hopes expressed on the last occasion, Mr Wilcox's bankruptcy has not been annulled. The evidence in support of Mr Wilcox's motion and matters put to me from the bar table on his behalf by Mr Danis are properly to be characterised, as Mr Afshar submitted, as no more than hopeful indications of plans utilising assets said to be available to Mr Wilcox that would ultimately result in the annulment of his bankruptcy.

8. Mr Danis has candidly said that if and when his client's bankruptcy may be annulled is not something which can be pinpointed at this stage with any certainty. Mr Danis asked the Court to extend the stay for somewhere between three to six months in the hope that the bankruptcy would be annulled in that period.

9. The Court has every sympathy for the personal vicissitudes that Mr Wilcox has suffered in recent years. He has suffered a traumatic brain injury which has impaired his capacity to deal promptly with matters concerning this litigation. His evidence also includes serious complaints against the conduct of his legal advisors at various times. I have no view about whether those complaints are justified.

10. Notwithstanding that sympathy, the fact remains that on 8 December 2023 the Court made orders that the proceedings should be dismissed by reason of Mr Wilcox's bankruptcy, subject to the indulgence of a short stay. For whatever reason, Mr Wilcox remains a bankrupt and the Court has no evidence before it to give it a sufficient (or any) level of confidence that the bankruptcy will be annulled in a timely fashion, if at all.

11. In approaching this application, the Court also has to bear in mind the position of the defendant. Given the course of this matter both before me and other judges of the Division (see, for example, the judgments of Robb J to which I have referred in [2] and [5] above) to extend the stay would be unfair to the defendant: he would have hanging over his head for many more months the uncertainty of what was to occur with these proceedings, which already have a long and unsatisfactory procedural history.

Conclusion

12. For these reasons, I am therefore not satisfied that the Court should exercise its discretion to extend the stay, and I decline to do so.

13. The orders of the Court are:

1. The plaintiff's notice of motion filed 29 January 2024 is dismissed;

2. The plaintiff is to pay the first defendant's costs of that motion.

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Amendments

20 February 2024 - Amendment to case title