Wakeling v Wade (No 2) [2011] FCA 1452

Wakeling v Wade (No 2) [2011] FCA 1452

The Court gave effect to its principal conclusions by declaring that the relevant Supreme Court causes of action vested in Mr Leroy as Ms Wade's trustee in bankruptcy and, if not extinguished by operation of law, continued to vest in him despite Ms Wade's discharge from bankruptcy. Further declarations about assignment findings were unnecessary and undesirable. Ms Wade's failure to accept the 27 August 2010 offer did not justify indemnity costs merely because she would have been better off accepting it. Leave under s 58(3) of the Bankruptcy Act 1966 (Cth) was not required for the costs orders or declarations. The applications and notices of motion were dismissed as ordered, with costs...

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Federal Court Applications Concerning Declarations as to Causes of Action and Trustee in Bankruptcy Title, Related Notices of Motion, and Costs / Orders After Earlier Reasons for Judgment and Written Submissions in Relation to Orders
Outcome
In NSD 212 of 2010, declarations were made, the application was otherwise dismissed, Ms Wade's notices of motion were dismissed, and costs orders were made against Ms Wade. In NSD 986 of 2010, the application was dismissed, the applicants were ordered to pay the first and second respondents' costs, and there was no...
Legal Topics
['vesting of Causes of Action in Trustee in Bankruptcy' 'effect of Discharge From Bankruptcy on Vested Causes of Action' 'leave Under S 58(3) of the Bankruptcy Act 1966 (cth)' 'calderbank Offer and Indemnity Costs' 'dismissal of Applications and Notices of Motion']
['bankruptcy' 'civil Procedure' 'costs' 'limitation of Actions'] ['vesting of Causes of Action in Trustee in Bankruptcy' 'effect of Discharge From Bankruptcy on Vested Causes of Action' 'leave Under S 58(3) of the Bankruptcy Act 1966 (cth)' 'calderbank Offer and Indemnity Costs' 'dismissal of Applications and Notices of Motion']

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Procedural Posture

Federal Court Applications Concerning Declarations as to Causes of Action and Trustee in Bankruptcy Title, Related Notices of Motion, and Costs / Orders After Earlier Reasons for Judgment and Written Submissions in Relation to Orders

Legal Issues

  1. 1 ["Whether the causes of action the subject of Supreme Court Proceedings No 2008/00289287 vested in Mr Leroy as Ms Wade's trustee in bankruptcy and remained vested in him after Ms Wade's discharge from bankruptcy." 'Whether any causes of action the subject of Supreme Court Proceedings No 2008/00289195 vested in Ms Wade or Mr Leroy, and whether they remained vested in Mr Leroy after discharge from bankruptcy.' 'Whether declarations concerning specific findings about assignments should be made.' 'Whether Ms Wade should pay costs on an indemnity basis because she did not accept the offer in the letter of 27 August 2010.' 'Whether leave under s 58(3) of the Bankruptcy Act 1966 (Cth) was required to obtain costs orders against Ms Wade or to make the proposed declarations.' 'How the applications and notices of motion should be disposed of.']

Ratio Decidendi

The Court gave effect to its principal conclusions by declaring that the relevant Supreme Court causes of action vested in Mr Leroy as Ms Wade's trustee in bankruptcy and, if not extinguished by operation of law, continued to vest in him despite Ms Wade's discharge from bankruptcy. Further declarations about assignment findings were unnecessary and undesirable. Ms Wade's failure to accept the 27 August 2010 offer did not justify indemnity costs merely because she would have been better off accepting it. Leave under s 58(3) of the Bankruptcy Act 1966 (Cth) was not required for the costs orders or declarations. The applications and notices of motion were dismissed as ordered, with costs...

Court Disposition

In NSD 212 of 2010, declarations were made, the application was otherwise dismissed, Ms Wade's notices of motion were dismissed, and costs orders were made against Ms Wade. In NSD 986 of 2010, the application was dismissed, the applicants were ordered to pay the first and second respondents' costs, and there was no...

Orders

  • ["NSD 212 of 2010: The causes of action the subject of Supreme Court Proceedings No 2008/00289287 brought by the first respondent against the applicant vested in the second respondent in his capacity as the first respondent's trustee in bankruptcy upon his appointment on 3 January 2003 and, if not yet extinguished...