Official Receiver in Bankruptcy v Schultz [1990] HCA 45

Official Receiver in Bankruptcy v Schultz [1990] HCA 45

Mrs. Schultz acquired on Mrs. Pereira's death a chose in action to enforce due administration of the estate, and that property vested in the Official Receiver during her bankruptcy. The orders under s. 41 of the Succession Act did not alter the will or destroy that chose in action, but imposed statutory limitations on the executor's administration. The Full Court's order took effect only when made, but in setting aside Moynihan J.'s order it revived the full expectation under the will and then carved out a life estate for Mr. Pereira. The remainder left to Mrs. Schultz was not a new interest created after discharge from bankruptcy; it was derived from the chose in action already vested in...

Jurisdiction
Australia
Procedural Posture
Appeal Concerning Whether an Interest Under a Will and Family Provision Orders Formed Part of a Bankrupt Estate / High Court Appeal From the Full Court of the Supreme Court of Queensland
Outcome
Appeal allowed.
Legal Topics
['property Divisible Among Creditors' 'right to Due Administration of an Unadministered Estate' 'effect of Family Provision Orders Under S. 41 of the Succession Act 1981 Q' 'operation Date of Appellate Orders']
['bankruptcy' 'succession' 'deceased Estates'] ['property Divisible Among Creditors' 'right to Due Administration of an Unadministered Estate' 'effect of Family Provision Orders Under S. 41 of the Succession Act 1981 Q' 'operation Date of Appellate Orders']

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Procedural Posture

Appeal Concerning Whether an Interest Under a Will and Family Provision Orders Formed Part of a Bankrupt Estate / High Court Appeal From the Full Court of the Supreme Court of Queensland

Legal Issues

  1. 1 ['Whether the interest of Mrs. Schultz described in the order of the Full Court formed part of her bankrupt estate.' "Whether Mrs. Schultz's right to due administration of Mrs. Pereira's estate vested in the Official Receiver under the Bankruptcy Act 1966 Cth." 'Whether orders made under s. 41 of the Succession Act 1981 Q created new rights or merely affected the value or fruits of rights arising under the will.' "Whether the Full Court's order operated from the date it was made or from the date of Moynihan J.'s order." "Whether Mrs. Schultz's remainder interest after Mr. Pereira's life estate was derived from the Full Court's order or from the chose in action vested in the Official Receiver."]

Ratio Decidendi

Mrs. Schultz acquired on Mrs. Pereira's death a chose in action to enforce due administration of the estate, and that property vested in the Official Receiver during her bankruptcy. The orders under s. 41 of the Succession Act did not alter the will or destroy that chose in action, but imposed statutory limitations on the executor's administration. The Full Court's order took effect only when made, but in setting aside Moynihan J.'s order it revived the full expectation under the will and then carved out a life estate for Mr. Pereira. The remainder left to Mrs. Schultz was not a new interest created after discharge from bankruptcy; it was derived from the chose in action already vested in...

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Order that the costs of the appellant of the appeal and the costs of the respondents of and incidental to the appeal be paid out of the deceased estate.' 'Set aside the orders of the Full Court of the Supreme Court of Queensland.' 'In lieu thereof, order that the appeal to that Court be...