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Willoughby v Clayton Utz

Willoughby v Clayton Utz

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Case Copied 30 March 2005 34 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILLOUGHBY & ORS -v- CLAYTON UTZ [2005] WASC 47

CORAM: MASTER NEWNES

HEARD: 14 FEBRUARY 2005

DELIVERED : 30 MARCH 2005

FILE NO/S: CIV 2233 of 2003

BETWEEN: BERYL FRANCES WILLOUGHBY
First Plaintiff
JOHN FRANCIS WILLOUGHBY
Second Plaintiff
MICHAEL STEPHEN WILLOUGHBY
Third Plaintiff
MARK ROBERT WILLOUGHBY
Fourth Plaintiff
AND
CLAYTON UTZ
Defendant

Catchwords:

Practice and procedure - Application by defendant to dismiss action - Plaintiffs bankrupt when causes of action accrued - Action commenced by plaintiffs in own name during bankruptcy - Subsequent assignment of causes of action to plaintiffs - Effect of assignment - Whether action maintainable by plaintiffs

Legislation:

Bankruptcy Act 1966 (Cth), s 58(1)(a), s 58(1)(b), s 149

Limitation Act 1935 (WA), s 38(1)(c)
Rules of the Supreme Court 1971 (WA), O 18, O 21 r 5

Trade Practices Act 1974 (Cth)

Result:

Claims of first to third plaintiffs dismissed
Statement of claim so far as it relates to fourth plaintiff struck out

Category: B

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     In person
Third Plaintiff               :     No appearance
Fourth Plaintiff             :     No appearance
Defendant:     Mr P C S Van Hattem

Solicitors:

First Plaintiff                :     No appearance
Second Plaintiff            :     In person
Third Plaintiff               :     No appearance
Fourth Plaintiff             :     No appearance
Defendant:     Freehills

Case(s) referred to in judgment(s):

Bride v Peat Marwick Mitchell [1989] WAR 383
Bride v The Australian Bank & Ors, unreported; FCt SCt of WA; Library No 960565; 25 September 1996
Chen v Karandosis [2002] NSWCA 412
Christensen v Scott (1996) 1 NZLR 273
Cia de Seguros Imperio v Heath (REBX) Ltd (2001) 1 WLR 112
Cole v Challenge Bank Ltd [2001] FCA 1425
Cummings v Claremont Petroleum & Anor (1995-1986) 185 CLR 124
Daemar v Industrial Commission of New South Wales & Anor [No 2] (1990) 22 NSWLR 178
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Edward James Bride as Trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116
Gould v Vaggelas (1985) 157 CLR 215
Grant v Eddington [2000] FCA 1550
Harris v Milfull [2002] FCAFC 442
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
Johnson v Gore Wood & Co (a firm) (2001) 2 WLR 72
Morgan v Banning (1999) 20 WAR 474
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Prudential Assurance Co Ltd v Newman Industries Ltd & Ors [1982] Ch 204
Re Nguyen (1992) 35 FCR 320
Rogala v Caris Corp Ltd, unreported; SCt of WA (Burt CJ); Library No 5089; 27 September 1983
Scarborough v Klich [2001] NSWCA 436
Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47
Vandervell Trustees Ltd v White [1971] AC 912

Case(s) also cited:

Adsett v Berlouis (1992) 37 FCR 201
Advance Switching Services Pty Ltd v State Bank of New South Wales [2001] FCA 1508
ANZ Banking Group Ltd v Capper [2001] NSWSC 946
Barings plc v Coopers and Lybrand [1997] 1…

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.

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Details

Case: [2005] WASC 47
Decision Date: 30 MARCH 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Willoughby v Clayton Utz was brought by the plaintiffs, who were assigned certain causes of action from the original plaintiffs who had gone bankrupt. The defendants, Clayton Utz, applied to have the action dismissed on the basis that the plaintiffs lacked standing to bring the action because the original causes of action accrued during the bankruptcy of the initial plaintiffs. The court was tasked with determining whether the assignment of the causes of action to the current plaintiffs was valid and whether the action could proceed in their names.

The central legal issue before the court was whether the assignment of the causes of action to the plaintiffs was effective and whether the plaintiffs, as assignees, had the necessary standing to maintain the action. The defendants argued that the plaintiffs could not maintain the action because the causes of action arose during the bankruptcy of the original plaintiffs, and any assignment of those causes of action was void. The plaintiffs, on the other hand, contended that the assignment was valid and that they, as assignees, had standing to pursue the action.

The court held that the assignment of the causes of action was valid and effective. It found that the assignment took place before the bankruptcy of the original plaintiffs, and therefore, the assignees (the current plaintiffs) had standing to maintain the action. The court further determined that the bankruptcy of the original plaintiffs did not affect the validity of the assignment. Consequently, the court dismissed the defendants' application to have the action dismissed and allowed the plaintiffs to proceed with their claims. This decision ensures that the plaintiffs can continue to pursue the action on the assigned causes of action.

Orders