Greer v Mulcahy [2000] NSWSC 668

Greer v Mulcahy [2000] NSWSC 668

The plaintiff's proposed amendment was futile because the original orders were purposeless after the property had been vested in the Official Trustee in Bankruptcy, the argument about the Australian Taxation Office did not affect the Deputy Commissioner of Taxation's right to recover tax, and the plaintiff lacked authority to bring a claim concerning property no longer vested in him. The summons was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
30 June 2000
Procedural Posture
Summons in Equity Division Concerning Bankruptcy Related Vesting of Property and Application to Amend Summons / Application for Amendment of Summons and Dismissal of Summons
Outcome
Application for amendment refused; summons dismissed with costs.
Legal Topics
['standing of Bankrupt' 'vesting of Property in Trustee in Bankruptcy' 'amendment of Summons' 'futility of Amendment' 'stay Pending Appeal']
['bankruptcy' 'practice and Procedure'] ['standing of Bankrupt' 'vesting of Property in Trustee in Bankruptcy' 'amendment of Summons' 'futility of Amendment' 'stay Pending Appeal']

Case Brief

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Procedural Posture

Summons in Equity Division Concerning Bankruptcy Related Vesting of Property and Application to Amend Summons / Application for Amendment of Summons and Dismissal of Summons

Legal Issues

  1. 1 ['Whether the plaintiff had standing to bring a claim in respect of property no longer vested in him but vested in his trustee in bankruptcy.' 'Whether the plaintiff should be permitted to amend the summons to restrain the Official Trustee in Bankruptcy from dealing with the property.' "Whether the alleged non-existence of the Australian Taxation Office affected the Deputy Commissioner of Taxation's right to recover tax due to the Commonwealth." "Whether action against the property should be stayed pending proposed appeal proceedings concerning McHugh J's decision."]

Ratio Decidendi

The plaintiff's proposed amendment was futile because the original orders were purposeless after the property had been vested in the Official Trustee in Bankruptcy, the argument about the Australian Taxation Office did not affect the Deputy Commissioner of Taxation's right to recover tax, and the plaintiff lacked authority to bring a claim concerning property no longer vested in him. The summons was therefore dismissed with costs.

Court Disposition

Application for amendment refused; summons dismissed with costs.

Orders

  • ['The application for amendment is refused.' 'The summons is dismissed with costs.']