Practice and procedure - Western Australia - Effect of bankruptcy on action - Election by trustee - Whether action ought be further stayed or dismissed - Disposition of costs of action

Legislation:

Bankruptcy Act 1966 (Cth), s 60

Result:

Action be dismissed

Plaintiff pay the costs of the application to be taxed; otherwise each party pay their own costs of the action

The sum of $7,500 paid into Court by the plaintiff on 20 August 2004 be paid out to her forthwith

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr S M Murphy

Solicitors:

Plaintiff: Not applicable
Defendant: State Solicitor for Western Australia

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

Anderson v Liddell (1968) 117 CLR 36
Arnoya Holdings Pty Ltd v Metway Leasing Ltd [1999] NSWCA 120
Bride v Peat Marwick Mitchell [1989] WAR 383
Finikiotis v Knight Frank (SA) Pty Ltd [2001] FCA 1733
Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458
Stevens v Young & Ors (1973) 2 NSWLR 750
Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47
Voskuilen v Morisset Mega Markets [2005] NSWSC 34

Case(s) also cited:

Bronzel v State Planning Authority (1979) 44 LGRA 34
Granich & Associates v Yap [2004] FCA 1567
Granich Partners v Yap [2003] WASC 206
Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Noye v Gwilliam [2002] WASC 227
Pinto v Kinkela [2003] WASC 126
State of Queensland v Beames [2004] 2 Qd R 99
Stobbart v Mocnaj (1996) 16 WAR 318
Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765

MACKNAY DCJ:

Relevant history

In 1993 the defendant Bailiff sold land belonging to the plaintiff at 449 Canning Highway, Melville.
In so doing the defendant was purporting to act under a Writ of Fieri Facias issued pursuant to a judgment obtained against the plaintiff by other parties.
In 1994 the plaintiff then brought this action, in which she claims the defendant "acted negligently and was thereby in breach of his duties in connection with the sale of the property", and that she suffered loss and damage as a result.
The action has a long history.
That includes the bringing of an application by the defendant in November 1995 for summary judgment, or alternatively an order that the plaintiff provide security for costs.
On 16 May 1996 a judge of the Court made orders that included that:
"The plaintiff do give security for the defendant's costs of the action in the sum of $7,500 by payment of that amount into court, and that in the meantime all further proceedings be stayed."
Although the plaintiff did not make the required payment she endeavoured to take further steps in the action, but…

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 Yap v Bailiff

Details

AGLC: Yap v Bailiff [2006] WADC 119
Case: [2006] WADC 119
Decision Date: 10 August 2006

CaseChat Overview and Summary

Yap, the bankrupt, brought a claim against Bailiff in the Supreme Court of Western Australia. Yap alleged that Bailiff, acting as a court bailiff, had used excessive force while executing a writ of possession. The bankruptcy trustee in Yap's case sought an election between staying the action and dismissing it, given that Yap was bankrupt. The trustee contended that the action should be dismissed as it would be futile, as Yap's assets were insufficient to cover any potential judgment against Bailiff. Bailiff, on the other hand, argued that the action should proceed, as Yap's bankruptcy did not necessarily mean that the claim was futile. The central legal issues revolved around the effect of Yap's bankruptcy on the continuation of his action and whether the action should be stayed or dismissed.

The court considered whether the action should be dismissed due to Yap's bankruptcy. It examined the circumstances under which a bankrupt's legal proceedings could continue and the discretion of the court in making such a decision. The court held that while Yap's bankruptcy did impose limitations on his ability to pursue the claim, it did not automatically render the action futile or necessitate its dismissal. The court found that the trustee had not provided sufficient evidence to demonstrate that the action would be futile, and therefore, the action should not be dismissed. The court exercised its discretion to allow the action to proceed, while noting that the costs of the action would be borne by Yap.

In reaching its decision, the court emphasised the importance of considering the specific circumstances of each case when deciding whether to stay or dismiss an action brought by a bankrupt. The court noted that the bankruptcy of the plaintiff does not necessarily preclude the continuation of legal proceedings, provided that there is a reasonable prospect of success and the action is not being used for an improper purpose. The court also considered the potential impact on the defendant if the action were to proceed, highlighting the need for a balanced approach in such matters. The court concluded that the action should not be dismissed and ordered that the costs of the action would be borne by Yap, the bankrupt.

Orders