Re Brazel, Allan Joseph Ex Parte; Jefferson, Philip Gregory & Ors [1995] FCA 1092

Re Brazel, Allan Joseph Ex Parte; Jefferson, Philip Gregory & Ors [1995] FCA 1092

Although the trustees had not prosecuted the matter with the urgency required and previous extensions did not make a further extension automatic, the continuing uncertainty about funding and indemnity for the proposed litigation justified one further extension. Justice could be done by granting a 30 day extension on terms that the trustees pay Metway Bank Ltd's costs of the application, with recourse to estate funds permitted.

Jurisdiction
Australia
Judgment Date
15 December 1995
Procedural Posture
Bankruptcy Application for Extension of Time to Elect Whether to Prosecute an Action / Third Application Under S. 33(1)(c) of the Bankruptcy Act 1966; Reasons for Judgment and Orders
Outcome
Application granted on terms; time for the trustees to make the election extended and trustees ordered to pay the respondent's costs of the application.
Legal Topics
['extension of Time' 'trustee Election to Prosecute Action' 'abandonment of Action' 'indemnity for Costs' 'discretion as to Costs']
['bankruptcy' 'civil Procedure' 'costs'] ['extension of Time' 'trustee Election to Prosecute Action' 'abandonment of Action' 'indemnity for Costs' 'discretion as to Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application for Extension of Time to Elect Whether to Prosecute an Action / Third Application Under S. 33(1)(c) of the Bankruptcy Act 1966; Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the time within which the trustees in bankruptcy may make the election required by s. 60(3) of the Bankruptcy Act 1966 should be further extended.' "Whether the trustees should pay Metway Bank Ltd's costs of opposing the application despite obtaining the extension."]

Ratio Decidendi

Although the trustees had not prosecuted the matter with the urgency required and previous extensions did not make a further extension automatic, the continuing uncertainty about funding and indemnity for the proposed litigation justified one further extension. Justice could be done by granting a 30 day extension on terms that the trustees pay Metway Bank Ltd's costs of the application, with recourse to estate funds permitted.

Court Disposition

Application granted on terms; time for the trustees to make the election extended and trustees ordered to pay the respondent's costs of the application.

Orders

  • ['The time within which the trustees are to make the election required by s. 60(3) of the Bankruptcy Act 1966 be extended to 4pm, 30 days from today.' "The trustees pay to Metway Bank Ltd its costs of and incidental to the trustees' application filed 12 December 1995." "The trustees' obligation in respect of the...