Official Trustee in Bankruptcy v Ferrier [1998] FCA 349

Official Trustee in Bankruptcy v Ferrier [1998] FCA 349

Because the dispute over the Certificate of Title depended on whether the solicitor held it for the bankrupt or for the bankrupt's children, the children were necessary parties and the application should be amended to join and serve them. As the solicitor did not undertake to deliver the Certificate of Title to the Trustee if the Trustee succeeded or to submit to the Court's order and take no further part, the solicitor should remain a party. Costs should be reserved because the proceedings were continuing and the appropriate costs order would depend on how the case developed.

Jurisdiction
Australia
Judgment Date
31 March 1998
Procedural Posture
Application Under Sections 30, 77 a and 265 a of the Bankruptcy Act 1966 / Interlocutory Application for Leave to File an Amended Application, Joinder, Substituted Service, Costs Reservation and Directions
Outcome
Leave granted to file an amended application; substituted service and directions ordered; costs reserved; undertaking noted.
Legal Topics
['official Trustee in Bankruptcy' 'certificate of Title' 'bankrupt Property' 'joinder of Parties' 'substituted Service' 'costs Reserved' 'undertaking Not to Deal With Property']
['bankruptcy' 'civil Procedure' 'property'] ['official Trustee in Bankruptcy' 'certificate of Title' 'bankrupt Property' 'joinder of Parties' 'substituted Service' 'costs Reserved' 'undertaking Not to Deal With Property']

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

Application Under Sections 30, 77 a and 265 a of the Bankruptcy Act 1966 / Interlocutory Application for Leave to File an Amended Application, Joinder, Substituted Service, Costs Reservation and Directions

Legal Issues

  1. 1 ["Whether the proceedings should be amended to join the bankrupt's children as third respondents in relation to the disputed property and Certificate of Title." 'Whether the solicitor should remain a party to the proceedings pending determination of who is entitled to the Certificate of Title.' 'Whether costs should be determined at the interlocutory stage or reserved.' "Whether s 77A of the Bankruptcy Act 1966 authorised the applicant's requirement for production or delivery up of the Certificate of Title."]

Ratio Decidendi

Because the dispute over the Certificate of Title depended on whether the solicitor held it for the bankrupt or for the bankrupt's children, the children were necessary parties and the application should be amended to join and serve them. As the solicitor did not undertake to deliver the Certificate of Title to the Trustee if the Trustee succeeded or to submit to the Court's order and take no further part, the solicitor should remain a party. Costs should be reserved because the proceedings were continuing and the appropriate costs order would depend on how the case developed.

Court Disposition

Leave granted to file an amended application; substituted service and directions ordered; costs reserved; undertaking noted.

Orders

  • ['Leave be granted to the applicant to file an amended application joining Richard John Cannane and Andrew Vincent Cannane as third respondents.' 'Leave be granted to seek a declaration that the applicant is the legal and beneficial owner of the half interest in the property known as 6 Paragon Avenue, South West...