Re Carter; Sweeney v Millyard [2000] FCA 1549

Re Carter; Sweeney v Millyard [2000] FCA 1549

The letter of 4 November 1999 did not give notice sufficient for s 60(3) because it merely inquired whether creditors had considered whether the litigation should be pursued and sought a response within 14 days; it did not indicate that the trustee was being required to elect within 28 days or that time would run...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 November 2000
Procedural Posture
Bankruptcy Application by Trustee Concerning Election to Prosecute Proceedings Commenced by Bankrupts / Application for Declarations And, If Necessary, Extension of Time Under S 33 of the Bankruptcy Act 1966 (cth)
Outcome
Declarations made in favour of the trustee; respondent ordered to pay the trustee's costs.
Legal Topics
['trustee Election to Prosecute or Discontinue Action' 'notice of Action Under S 60(3) of the Bankruptcy Act 1966 (cth)' 'extension of Time Under S 33 of the Bankruptcy Act 1966 (cth)']
['bankruptcy'] ['trustee Election to Prosecute or Discontinue Action' 'notice of Action Under S 60(3) of the Bankruptcy Act 1966 (cth)' 'extension of Time Under S 33 of the Bankruptcy Act 1966 (cth)']

Source-derived case record

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Procedural Posture

Bankruptcy Application by Trustee Concerning Election to Prosecute Proceedings Commenced by Bankrupts / Application for Declarations And, If Necessary, Extension of Time Under S 33 of the Bankruptcy Act 1966 (cth)

Legal Issues

  1. 1 ["Whether the solicitor's letter of 4 November 1999 was sufficient notice of the action for the purposes of s 60(3) of the Bankruptcy Act 1966 (Cth)." 'Whether the correspondence as a whole constituted sufficient notice for the purposes of s 60(3) of the Bankruptcy Act 1966 (Cth).' 'Whether the trustee made a sufficient written election under s 60(2) of the Bankruptcy Act 1966 (Cth).' 'Whether the Court had power under s 33 of the Bankruptcy Act 1966 (Cth) to extend time after the 28 day period in s 60(3) expired.']

Ratio Decidendi

The letter of 4 November 1999 did not give notice sufficient for s 60(3) because it merely inquired whether creditors had considered whether the litigation should be pursued and sought a response within 14 days; it did not indicate that the trustee was being required to elect within 28 days or that time would run from service. The other letters and the correspondence as a whole also did not provide the requisite notice. Accordingly, the 28 day period never commenced, and the trustee's letter of 24 February 2000 was a sufficient written election under s 60(2) to prosecute the District Court proceedings.

Court Disposition

Declarations made in favour of the trustee; respondent ordered to pay the trustee's costs.

Orders

  • ["Ian Millyard did not, by his solicitor's letter of 4 November 1999, or at all, give notice of the action sufficient for the purposes of s 60(3) of the Bankruptcy Act 1966 (Cth) to Paul Sweeney as trustee of the estates of Peter Bruce Carter and Anthea Irene Carter." 'Paul Sweeney, by letter dated 24 February 2000...