Young v Hughes Trueman Pty Ltd [2017] FCA 470

Young v Hughes Trueman Pty Ltd [2017] FCA 470

The extension was refused because no satisfactory reason was given for the trustee's failure to elect within the prescribed period, the trustee did not itself seek or expressly support the extension, no materials had been provided to enable an informed election, the notified litigation had no reasonable prospects of success, and extending time would prolong uncertainty and further litigation that had been found to involve an abuse of process, while refusal caused no demonstrated prejudice to the trustee or bankrupt estate.

Jurisdiction
Australia
Judgment Date
09 May 2017
Procedural Posture
Bankruptcy Application Under S 33(1)(c) of the Bankruptcy Act 1966 (cth) to Extend Time Specified in S 60(3) for Trustee to Elect to Prosecute or Discontinue Litigation / Interlocutory Application for Extension of Time
Outcome
Application dismissed.
Legal Topics
['extension of Time' 'trustee Election to Prosecute or Discontinue Proceedings' "deemed Abandonment of Bankrupt's Litigation" 'abuse of Process' 'costs']
['bankruptcy' 'insolvency' 'civil Procedure'] ['extension of Time' 'trustee Election to Prosecute or Discontinue Proceedings' "deemed Abandonment of Bankrupt's Litigation" 'abuse of Process' 'costs']

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Procedural Posture

Bankruptcy Application Under S 33(1)(c) of the Bankruptcy Act 1966 (cth) to Extend Time Specified in S 60(3) for Trustee to Elect to Prosecute or Discontinue Litigation / Interlocutory Application for Extension of Time

Legal Issues

  1. 1 ['Whether time should be extended under s 33(1)(c) of the Bankruptcy Act 1966 (Cth) for the trustee to make an election under s 60(3) in relation to notified litigation.' "Whether there was an adequate explanation for the trustee's delay in making an election within the prescribed time." 'Whether the notified litigation, including the LEC Costs Appeals and the Show Cause Application, had reasonable prospects of success.' 'Whether granting or refusing an extension would prejudice the trustee, the bankrupt estate, or other parties to the litigation.']

Ratio Decidendi

The extension was refused because no satisfactory reason was given for the trustee's failure to elect within the prescribed period, the trustee did not itself seek or expressly support the extension, no materials had been provided to enable an informed election, the notified litigation had no reasonable prospects of success, and extending time would prolong uncertainty and further litigation that had been found to involve an abuse of process, while refusal caused no demonstrated prejudice to the trustee or bankrupt estate.

Court Disposition

Application dismissed.

Orders

  • ['The application for an extension of time for the trustee to make an election under s 60(3) of the Bankruptcy Act 1966 (Cth) is dismissed.' "The respondents' costs be paid from the appellant's bankrupt estate."]