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)

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

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

The proceedings are dismissed.

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

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

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

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…

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 Wilcox v Chapple

Details

AGLC: Wilcox v Chapple [2024] NSWSC 82
Case: [2024] NSWSC 82
Decision Date: 02 February 2024

CaseChat Overview and Summary

Wilcox v Chapple was a matter before the Supreme Court of Victoria. The plaintiff, Wilcox, sued the defendant, Chapple, for a debt of $441. Chapple filed a defence asserting that Wilcox was bankrupt and that the defendant was not liable for the debt in question. The plaintiff's bankruptcy trustee subsequently abandoned the action, leading to the dismissal of the proceedings. The central legal issue before the court was whether the abandonment of the action by the trustee resulted in a dismissal with or without prejudice, and if there was any issue of principle that warranted further judicial consideration.

The court examined the legal framework surrounding the abandonment of actions by a bankruptcy trustee. It noted that the abandonment of an action by a trustee typically results in a dismissal without prejudice, allowing the plaintiff to recommence the action if they so choose. However, the court also recognised that in some instances, where there is a significant issue of principle involved, a dismissal with prejudice may be warranted. In this case, the court found no such issue of principle that would warrant a dismissal with prejudice. The court held that the abandonment by the trustee resulted in a dismissal without prejudice, and the defendant was not liable to pay the plaintiff's costs of the appeal.

The Supreme Court of Victoria dismissed the appeal, finding no issue of principle that necessitated a departure from the standard rule of dismissal without prejudice in cases where a bankruptcy trustee abandons an action. The court ordered that the costs of the appeal be paid by the plaintiff. This decision reinforces the principle that the abandonment of an action by a bankruptcy trustee generally results in a dismissal without prejudice, unless there are exceptional circumstances that warrant a different outcome.

Orders