O'Brien, J.W. v. Clyne, P.L. & Ors [1985] FCA 669

O'Brien, J.W. v. Clyne, P.L. & Ors [1985] FCA 669

At all material times after the deposit, the right to repayment of the bail security was the property of the bankrupt and divisible among his creditors under the Bankruptcy Act. The right to repayment vests in the trustee in bankruptcy once any conditions of bail have been performed.

Parties
Applicant: John William O'Brien; First Respondent: Peter Leopold Clyne; Second Respondent: The Clerk, St. James Centre, Local Court
Jurisdiction
Australia
Judgment Date
20 December 1985
Procedural Posture
Bankruptcy Application / Judgment and Orders After Substantive Hearing
Outcome
Application allowed; declarations made
Legal Topics
Property of Bankrupt, Bail Security, Division of Property
Bankruptcy Criminal Procedure Property of Bankrupt Bail Security Division of Property

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Parties

John William O'Brien

Applicant

Peter Leopold Clyne

First Respondent

The Clerk, St. James Centre, Local Court

Second Respondent

Procedural Posture

Bankruptcy Application / Judgment and Orders After Substantive Hearing

Legal Issues

  1. 1 Whether entitlement to repayment of bail security is property of the bankrupt divisible among creditors
  2. 2 Whether entitlement vests in trustee in bankruptcy or the bankrupt personally

Ratio Decidendi

At all material times after the deposit, the right to repayment of the bail security was the property of the bankrupt and divisible among his creditors under the Bankruptcy Act. The right to repayment vests in the trustee in bankruptcy once any conditions of bail have been performed.

Court Disposition

Application allowed; declarations made

Orders

  • Declared that the right to repayment of $30,000 deposited as bail security is vested in the applicant.
  • Declared that such right constitutes property divisible amongst the creditors of the first respondent in his bankruptcy.