Re Collins, S.I. v. Ex Parte Official Trustee in Bankruptcy [1986] FCA 111

Re Collins, S.I. v. Ex Parte Official Trustee in Bankruptcy [1986] FCA 111

A notice given by the bankrupt plaintiff does not constitute a notice by a 'defendant or other party' under s.60(3) of the Bankruptcy Act 1966, as that provision is directed towards parties in the position of the defendant, not the bankrupt plaintiff. Thus, the trustee was not required to elect within 28 days of such a notice.

Parties
Applicant: Official Trustee in Bankruptcy; Bankrupt / Plaintiff: Sheila Irene Collins; Respondent / Defendant: Jay Morris Bracher
Jurisdiction
Australia
Judgment Date
04 April 1986
Procedural Posture
Bankruptcy Application / Application for Declaratory Relief and Costs at First Instance
Outcome
Declaration granted; costs awarded to applicant.
Legal Topics
Trustee's Election in Litigation, Notice Under S.60 Bankruptcy Act, Interpretation of Procedural Provisions, Time Extension for Election
Bankruptcy Trustee's Election in Litigation Notice Under S.60 Bankruptcy Act Interpretation of Procedural Provisions Time Extension for Election

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Parties

Official Trustee in Bankruptcy

Applicant

Sheila Irene Collins

Bankrupt / Plaintiff

Jay Morris Bracher

Respondent / Defendant

Procedural Posture

Bankruptcy Application / Application for Declaratory Relief and Costs at First Instance

Legal Issues

  1. 1 Does a notice from the bankrupt plaintiff constitute notice from an 'other party' under s.60(3) of the Bankruptcy Act 1966?
  2. 2 Should time for election under s.60(3) be extended?

Ratio Decidendi

A notice given by the bankrupt plaintiff does not constitute a notice by a 'defendant or other party' under s.60(3) of the Bankruptcy Act 1966, as that provision is directed towards parties in the position of the defendant, not the bankrupt plaintiff. Thus, the trustee was not required to elect within 28 days of such a notice.

Court Disposition

Declaration granted; costs awarded to applicant.

Orders

  • Declaration that the letter dated 22 September 1980 did not constitute a notice for the purpose of s.60(3) of the Bankruptcy Act 1966.
  • The respondent pay the applicant's costs of the application.