Pedersen v Delaveris [2010] FCA 536

Pedersen v Delaveris [2010] FCA 536

Leave was granted because, assuming s 58(3)(b) applied, continuation of the Supreme Court proceedings to determine the applicant's claimed proprietary interest and entitlements under the Property (Relationships) Act 1984 (NSW) was not inconsistent with the purposes of bankruptcy law, the proceedings had been commenced and readied for hearing before the bankruptcy, the evidence should be tested and resolved in the usual way, and there was no significant disadvantage to unsecured creditors in allowing the final hearing to proceed.

Jurisdiction
Australia
Judgment Date
27 May 2010
Procedural Posture
Application for Leave Under S 58(3)(b) of the Bankruptcy Act 1966 (cth) to Continue Supreme Court of New South Wales Proceedings Against a Bankrupt / Urgent Application Heard and Determined
Outcome
Application granted.
Legal Topics
['leave to Continue Proceedings Against a Bankrupt' 'provable Debt' 'domestic Relationship Property Adjustment' 'proprietary Interest in Real Property' 'trustee in Bankruptcy']
['bankruptcy' 'property Relationships' 'trusts' 'civil Procedure'] ['leave to Continue Proceedings Against a Bankrupt' 'provable Debt' 'domestic Relationship Property Adjustment' 'proprietary Interest in Real Property' 'trustee in Bankruptcy']

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Procedural Posture

Application for Leave Under S 58(3)(b) of the Bankruptcy Act 1966 (cth) to Continue Supreme Court of New South Wales Proceedings Against a Bankrupt / Urgent Application Heard and Determined

Legal Issues

  1. 1 ['Whether the applicant should be granted leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to continue proceedings in the Supreme Court of New South Wales against the first respondent, a bankrupt.' 'Whether the Supreme Court proceedings were in respect of a provable debt within the meaning of s 58(3)(b).' 'Whether granting leave would be inconsistent with the purposes of bankruptcy law or disadvantage unsecured creditors.' 'Whether leave should extend to claims for relief under the Property (Relationships) Act 1984 (NSW) and associated declarations or orders.']

Ratio Decidendi

Leave was granted because, assuming s 58(3)(b) applied, continuation of the Supreme Court proceedings to determine the applicant's claimed proprietary interest and entitlements under the Property (Relationships) Act 1984 (NSW) was not inconsistent with the purposes of bankruptcy law, the proceedings had been commenced and readied for hearing before the bankruptcy, the evidence should be tested and resolved in the usual way, and there was no significant disadvantage to unsecured creditors in allowing the final hearing to proceed.

Court Disposition

Application granted.

Orders

  • ["The applicant has leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 to continue the proceedings in the Supreme Court of New South Wales between the applicant and the first respondent (Proceedings No. 3506 of 2009) to the extent necessary to enable the Supreme Court of New South Wales to determine the...