Willi v Interprac Financial Planning

[2020] QCATA 104

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Willi v Interprac Financial Planning [2020] QCATA 104

PARTIES:

ALAN NEVILLE WILLI

(appellant)

v

INTERPRAC FINANCIAL PLANNING

MICHAEL BUTLER

PATRICIA MARGARET DOUGLAS

MALCOLM MACKENZIE DOUGLAS

(respondents)

APPLICATION NO/S:

APL292-19

ORIGINATING APPLICATION NO/S:

MCDO 984/18 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

8 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL –  WHO MAY EXERCISE RIGHT – OTHER PERSONS ENTITLED – where an applicant brought a minor debt claim and then became a bankrupt on his own petition – where the trustee in bankruptcy elected to discontinue the minor debt claim and it was dismissed – whether the right of action vested in the trustee in bankruptcy – whether the bankrupt may appeal to the Appeal Tribunal

Bankruptcy Act 1966 (Cth), s 58, s 60, s 116

Bagshaw v Scott [2002] FCAFC 362
Cummings v Claremont Petroleum NL And Another (1996) 185 CLR 124
Jackson v Health Services Union [2015] FCAFC 188

REPRESENTATION:
Appellant:	Self-represented
Respondent:	Did not participate
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This appeal has been brought by Alan Neville Willi against a decision of the tribunal to dismiss a minor civil dispute in which he claimed certain monies from two of the respondents to this appeal. 

2. Mr Willi is an undischarged bankrupt and after his trustee in bankruptcy elected not to pursue the claim, it was dismissed.

3. In the usual case, under the Bankruptcy Act 1966 (Cth) and the common law, the fact that Mr Willi was bankrupt and his trustee in bankruptcy elected not to pursue the claim would be fatal to it, and therefore also fatal to any appeal against its dismissal.

4. For this reason I have been asked to consider whether to dismiss the appeal on a preliminary consideration of it. This is under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which allows the Appeal Tribunal to bring an early end to a proceeding if it is (of relevance here) misconceived or an abuse of process.

5. But Mr Willi argues that his claim was outside the relevant provisions of the Bankruptcy Act.  On that basis he says that the claim should have been allowed to proceed, and therefore his appeal ought to succeed to allow that to happen.

6. The main provisions of the Bankruptcy Act which affect this matter are sections 58, 60 and 116. Section 58(1) provides that when a debtor becomes a bankrupt the property of the bankrupt not being after-acquired property vests in the Official Trustee, or the registered trustee on appointment. Section 116 assists as to what is the property of the bankrupt. It is clear from the statute and from the common law that…