Re Simersall [1996] FCA 674

Re Simersall [1996] FCA 674

Woodbury was the only creditor prepared to indemnify the Trustee, paid substantial costs and disbursements, undertook a considerable risk in litigation whose success was not guaranteed, and the recovery would not have been made but for its indemnity; with one substantial creditor consenting and no creditor objecting, the discretion under subsection 109(10) should be exercised to award Woodbury the whole of the verdict and costs recovered after payment of sums properly payable under subsection 109(1)(a).

Jurisdiction
Australia
Judgment Date
25 June 1996
Procedural Posture
Bankruptcy Application Under Subsection 109(10) of the Bankruptcy Act 1966 / Extempore Reasons for Judgment and Minute of Orders
Outcome
Application granted.
Legal Topics
['creditor Indemnity for Trustee Litigation' 'distribution of Verdict and Costs Recovered by Trustee' 'bankruptcy Act 1966 S 109(10) Discretion']
['bankruptcy'] ['creditor Indemnity for Trustee Litigation' 'distribution of Verdict and Costs Recovered by Trustee' 'bankruptcy Act 1966 S 109(10) Discretion']

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Procedural Posture

Bankruptcy Application Under Subsection 109(10) of the Bankruptcy Act 1966 / Extempore Reasons for Judgment and Minute of Orders

Legal Issues

  1. 1 ['Whether Woodbury Pty Limited should receive the whole of the verdict and costs recovered by the Trustee in proceedings for which Woodbury indemnified the Trustee.']

Ratio Decidendi

Woodbury was the only creditor prepared to indemnify the Trustee, paid substantial costs and disbursements, undertook a considerable risk in litigation whose success was not guaranteed, and the recovery would not have been made but for its indemnity; with one substantial creditor consenting and no creditor objecting, the discretion under subsection 109(10) should be exercised to award Woodbury the whole of the verdict and costs recovered after payment of sums properly payable under subsection 109(1)(a).

Court Disposition

Application granted.

Orders

  • ['Pursuant to the provisions of subsection 109(10) of the Bankruptcy Act 1966 Woodbury Pty Limited shall receive the whole of the verdict and costs recovered by the Trustee of the bankrupt estate of Raymond Gerald Simersall in the proceedings in this Honourable Court entitled David Ernest Willis Blackwell...