Green v Official Trustee in Bankruptcy, in the matter of Schneller (Bankrupt) [2001] FCA 1644

Green v Official Trustee in Bankruptcy, in the matter of Schneller (Bankrupt) [2001] FCA 1644

The Court had jurisdiction to grant leave because the Supreme Court proceedings were proceedings against the property of the bankrupt and were brought under s 37A of the Conveyancing Act 1919 (NSW) to recover that property. It was appropriate to grant leave, but only on undertakings that protected the bankrupt estate and the Official Trustee's position, especially because any recovered property or proceeds should not be applied directly to Mr Green's judgments but should be held for or paid to the Trustee for the benefit of creditors generally.

Jurisdiction
Australia
Judgment Date
06 November 2001
Procedural Posture
Application for Leave Under S 58(3)(b) of the Bankruptcy Act 1966 (cth) to Continue Supreme Court Proceedings / First Instance Hearing and Orders in the Federal Court of Australia
Outcome
Leave granted to Mr Green to continue Supreme Court proceedings 3331 of 2001, subject to undertakings; applicant ordered to pay the Official Trustee's costs; no order for costs in respect of Mr Dennis.
Legal Topics
['leave to Continue Proceedings Against Bankrupt Property' 'vesting of Bankrupt Property in Trustee' 'voidable Transfer of Property' 'conditions and Undertakings Protecting Bankrupt Estate']
['bankruptcy and Insolvency' 'civil Procedure' 'property Law'] ['leave to Continue Proceedings Against Bankrupt Property' 'vesting of Bankrupt Property in Trustee' 'voidable Transfer of Property' 'conditions and Undertakings Protecting Bankrupt Estate']

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Procedural Posture

Application for Leave Under S 58(3)(b) of the Bankruptcy Act 1966 (cth) to Continue Supreme Court Proceedings / First Instance Hearing and Orders in the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction to grant leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) for Mr Green to continue proceedings in the Equity Division of the Supreme Court of New South Wales.' 'Whether the Court should exercise its discretion to grant leave to continue proceedings against property alleged to be property of the bankrupt.' 'Whether conditions or undertakings were required to ensure that any property or proceeds recovered would be held for the Official Trustee for the benefit of the bankrupt estate.']

Ratio Decidendi

The Court had jurisdiction to grant leave because the Supreme Court proceedings were proceedings against the property of the bankrupt and were brought under s 37A of the Conveyancing Act 1919 (NSW) to recover that property. It was appropriate to grant leave, but only on undertakings that protected the bankrupt estate and the Official Trustee's position, especially because any recovered property or proceeds should not be applied directly to Mr Green's judgments but should be held for or paid to the Trustee for the benefit of creditors generally.

Court Disposition

Leave granted to Mr Green to continue Supreme Court proceedings 3331 of 2001, subject to undertakings; applicant ordered to pay the Official Trustee's costs; no order for costs in respect of Mr Dennis.

Orders

  • ['Leave be granted to Mr Green to continue proceedings 3331 of 2001 in the Equity Division of the Supreme Court of New South Wales against Jennifer Ann Schneller and Paul Ronald Schneller and to take all necessary steps in those proceedings together with all necessary fresh steps.' 'Leave is granted without...