Davies v Kyogle Shire Council [2007] NSWIRComm 9

Davies v Kyogle Shire Council [2007] NSWIRComm 9

Even on the applicant's own case, once the s 106 proceedings were commenced they vested in his trustee as after-acquired property under s 58 of the Bankruptcy Act. The trustee did not bring or support the motion to amend, and the applicant therefore had no standing in November 2006 to exercise rights in the proceedings or seek an amendment that would remove the trustee's interest. It was not in the interests of justice to permit the Court's processes to be used without notice to the trustee. The proposed amended claim was also not apparently within s 116(2)(g), because s 106 proceedings are necessarily concerned with contractual property rights. The applicant's motion was refused and the...

Jurisdiction
Australia
Judgment Date
12 February 2007
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Notices of Motion: Respondent Sought Dismissal or Security for Costs; Applicant Sought Leave to Amend Summons
Outcome
Applicant's motion refused; proceedings dismissed; costs as agreed or assessed in favour of the respondent, with liberty to approach on costs.
Legal Topics
['unfair Contract' 'standing of Undischarged Bankrupt' 'after Acquired Property' 'amendment of Summons' 'strike Out or Dismissal' 'costs']
['industrial Relations' 'employment Law' 'bankruptcy' 'civil Procedure'] ['unfair Contract' 'standing of Undischarged Bankrupt' 'after Acquired Property' 'amendment of Summons' 'strike Out or Dismissal' 'costs']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Notices of Motion: Respondent Sought Dismissal or Security for Costs; Applicant Sought Leave to Amend Summons

Legal Issues

  1. 1 ['Whether an undischarged bankrupt had standing to commence and continue proceedings under s 106 of the Industrial Relations Act 1996.' 'Whether the applicant had standing to seek leave to amend the summons after the s 106 proceedings vested in his trustee in bankruptcy as after-acquired property.' 'Whether the proposed amended summons would fall within the exemption in s 116(2)(g) of the Bankruptcy Act for damages or compensation for personal injury or wrong done to the bankrupt.' 'Whether the proposed amendments were so substantial as to amount to a new claim potentially caught by s 108B of the Industrial Relations Act 1996.']

Ratio Decidendi

Even on the applicant's own case, once the s 106 proceedings were commenced they vested in his trustee as after-acquired property under s 58 of the Bankruptcy Act. The trustee did not bring or support the motion to amend, and the applicant therefore had no standing in November 2006 to exercise rights in the proceedings or seek an amendment that would remove the trustee's interest. It was not in the interests of justice to permit the Court's processes to be used without notice to the trustee. The proposed amended claim was also not apparently within s 116(2)(g), because s 106 proceedings are necessarily concerned with contractual property rights. The applicant's motion was refused and the...

Court Disposition

Applicant's motion refused; proceedings dismissed; costs as agreed or assessed in favour of the respondent, with liberty to approach on costs.

Orders

  • ["The applicant's motion is refused." 'The proceedings are dismissed.' 'Costs as agreed or assessed in favour of the respondent.' 'The parties have liberty to approach if there is any issue as to the costs order.']