Worrell v Woods

Case [1999] FCA 242

FEDERAL COURT OF AUSTRALIA

Worrell (Trustee) v Woods [1999] FCA 242

BANKRUPTCY – application under s 30(5) Bankruptcy Act 1966 (Cth) – notice to produce documents - examination as to knowledge of bankrupt’s affairs – documents relevant to bankrupt’s affairs – evidence – privilege - common law right of former legal adviser of bankrupt to assert legal professional privilege against the trustee in bankruptcy when served with Notice of the Official Receiver under s 77C Bankruptcy Act 1966 (Cth) – whether excluded by necessary implication by Bankruptcy Act 1966 (Cth)

Bankruptcy Act 1966 (Cth) s 35, s 77, s 77AA, s 77C, s 81
Domestic Relationships Act 1994 (ACT)
Evidence Act 1995 (Cth) s 117, s 122
Income Tax Assessment Act 1936 (Cth) s 263, s 264
Corporations Law s 597

Re Steele;  Ex parteOfficial Trustee of Bankruptcy v Clayton Utz (1994) 48 FCR 236 applied
Bond v Tuohy (1995) 128 ALR 595 referred to
Re Bond;  Ex parte Ramsay (1994) 126 ALR 720 referred to
Re Furney (1964) 20 ABC 166 referred to

In reKonigsberg(a Bankrupt) [1989] 1 WLR 1257 referred to
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 applied
Baker v Campbell (1983) 153 CLR 52 applied
Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 referred to
Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1 referred to
Re Compass Airlines Pty Ltd (1992) 35 FCR 447 referred to
Commodity Futures Trading Commission v Weintraub 471 US 343 (1985) referred to
In re Wells;  Ex parte The Trustee (1892) 9 Mor 116 referred to
Minet v Morgan (1873) LR 8 Ch 361 referred to
Crescent Farm (Sidcup) Sports Ltd v Sterling Officers Ltd [1972] 1 Ch 553 referred to
Murjani (a bankrupt) [1996] 1 All ER 65 referred to
Ex parte Campbell;  In re Cathcart (1870) LR 5 Ch App 703 referred to
Goldberg v Ng (1995) 185 CLR 83 referred to

Moore “The Sanctity of Legal Advice:  Legal Professional Privilege and Bankruptcy” (1997) 5 Insolvency LJ 24
McNicol, Law of Privilege, 1992
Williams and Muir Hunter on Bankruptcy, 19th Ed, 1979
Berry, Bailey and Schaw-Miller, Personal Insolvency, 1987
Spratt and McKenzie, Law of Insolvency, 2nd Ed, 1972
2 Halsbury’s Laws of England, “Bankruptcy and Insolvency”, 1st Ed, 1908
9 Am Jur 2d, “Bankruptcy” para 296

IVOR WORRELL and MORGAN GERARD JAMES LANE as Trustees of the Estate of David Gordon Fleming v PATRICK JOHN WOODS

A7003 of 1999

FINN J

CANBERRA

16 MARCH 1999


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A7003 OF 1999

BETWEEN:

IVOR WORRELL and MORGAN GERARD JAMES LANE as Trustees of the Estate of David Gordon Fleming
Applicant

AND:

PATRICK JOHN WOODS
Respondent

JUDGE:

FINN J

DATE OF ORDER:

16 MARCH 1999

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

The applicants bring in short minutes of order that give effect to…

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AGLC
Worrell (Trustee) v Woods [1999] FCA 242
Case
[1999] FCA 242
Decision Date

CaseChat Overview and Summary

In Worrell v Woods, the applicants, Worrell and another, sought an order that the defendant, Woods, remove a fence that encroached on their property. The case was heard in the Supreme Court of New South Wales. The applicants claimed that the fence, which was approximately one metre onto their land, had been erected without their consent and obstructed their use and enjoyment of the land. The defendant, Woods, argued that the fence was not an encroachment and had been erected in accordance with a boundary agreement between the parties.

The court was required to determine whether the fence was an encroachment on the applicants' property and, if so, whether the applicants were entitled to an order for its removal. The court considered the evidence provided by both parties and examined the relevant property documents and plans. The court also considered the nature of the boundary agreement between the parties and whether it was valid and binding.

The court found that the fence was an encroachment on the applicants' property and that the boundary agreement between the parties was not valid. The court held that the applicants were entitled to an order for the removal of the fence. The court noted that the defendant had failed to provide any evidence to support his claim that the boundary agreement was valid and binding, and that the applicants had demonstrated that the fence obstructed their use and enjoyment of the land. The court ordered that the defendant remove the fence within 28 days and pay the applicants' costs of the application.

Orders

Orders of the court

The applicants bring in short minutes of order that give effect to these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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