Re Fuller, Michael John; Wily, Hugh Jenner as Trustee of the Estate of Michael John Fuller & Anor v Fuller, Laima & Ors [1998] FCA 949

Re Fuller, Michael John; Wily, Hugh Jenner as Trustee of the Estate of Michael John Fuller & Anor v Fuller, Laima & Ors [1998] FCA 949

The causes of action pleaded against the Fourth Respondent concern the effect or enforcement of the Bankruptcy Act as they relate to property vesting in the Trustee in Bankruptcy and the Trustee’s right to recover such assets. Thus, Order 8 Rule 1(l) applies and there is no injustice in permitting the amendment. Amendment of the statement of claim is permitted as a matter of discretion.

Jurisdiction
Australia
Judgment Date
10 August 1998
Procedural Posture
Bankruptcy Proceeding / Interlocutory Motion Regarding Amendment of Pleadings
Outcome
Leave granted to file further amended statement of claim against Fourth Respondent; costs awarded to Fourth Respondent for part of hearing.
Legal Topics
['leave to Amend Pleading' 'service Outside Jurisdiction' 'vesting of Property in Trustee' 'breach of Trust']
['bankruptcy Law' 'trust Law' 'practice and Procedure'] ['leave to Amend Pleading' 'service Outside Jurisdiction' 'vesting of Property in Trustee' 'breach of Trust']

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Procedural Posture

Bankruptcy Proceeding / Interlocutory Motion Regarding Amendment of Pleadings

Legal Issues

  1. 1 ['Whether discretion to allow amendment of the statement of claim should be exercised regarding causes of action against a respondent outside the jurisdiction' 'Whether the new causes of action, if brought in new proceedings, would justify service outside the jurisdiction pursuant to Order 8 Rule 1 of Federal Court Rules' 'Whether proceedings concern the effect or enforcement of the Bankruptcy Act for the purposes of Order 8 Rule 1(l)']

Ratio Decidendi

The causes of action pleaded against the Fourth Respondent concern the effect or enforcement of the Bankruptcy Act as they relate to property vesting in the Trustee in Bankruptcy and the Trustee’s right to recover such assets. Thus, Order 8 Rule 1(l) applies and there is no injustice in permitting the amendment. Amendment of the statement of claim is permitted as a matter of discretion.

Court Disposition

Leave granted to file further amended statement of claim against Fourth Respondent; costs awarded to Fourth Respondent for part of hearing.

Orders

  • ['Leave be granted to file the further amended statement of claim dated 31 July 1998 marked Exhibit 1 insofar as it relates to the Fourth Respondent.' 'The First Applicant pay the costs of the Fourth Respondent of the hearing of the motion to strike out hearing up until lunchtime on 31 July 1998.' 'Otherwise no...