McNamara v San (No. 3) [2010] FCA 227

McNamara v San (No. 3) [2010] FCA 227

Applicant lacks standing to bring proceedings under sections 120 and/or 121 of the Bankruptcy Act or for declaratory relief regarding trustee rights; only trustees may bring such actions. The application has no reasonable prospect of success and must be dismissed under section 31A(2) of the Federal Court Act.

Parties
Applicant: Paul Anthony McNamara; First Respondent: Bao San; Second Respondent: Julie San; Third Respondent: Ivan San; Fourth Respondent: Official Trustee in Bankruptcy; Fifth Respondent: Schon Gregory Condon
Jurisdiction
Australia
Judgment Date
15 March 2010
Procedural Posture
Bankruptcy Proceeding / Summary Dismissal Application
Outcome
Application dismissed
Legal Topics
Standing of Creditor, Relief Under Bankruptcy Act, Summary Dismissal, Leave to Continue Proceedings Under Conveyancing Act
Bankruptcy Practice and Procedure Standing of Creditor Relief Under Bankruptcy Act Summary Dismissal Leave to Continue Proceedings Under Conveyancing Act

Case Brief

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Parties

Paul Anthony McNamara

Applicant

Bao San

First Respondent

Julie San

Second Respondent

Ivan San

Third Respondent

Official Trustee in Bankruptcy

Fourth Respondent

Schon Gregory Condon

Fifth Respondent

Procedural Posture

Bankruptcy Proceeding / Summary Dismissal Application

Legal Issues

  1. 1 Does the applicant have standing to seek relief under sections 120 and 121 of the Bankruptcy Act?
  2. 2 Is the applicant entitled to declaratory relief regarding trustee rights under sections 120 and 121?
  3. 3 Should leave be granted to continue Supreme Court proceedings under section 37A of the Conveyancing Act after transferors' bankruptcy?

Ratio Decidendi

Applicant lacks standing to bring proceedings under sections 120 and/or 121 of the Bankruptcy Act or for declaratory relief regarding trustee rights; only trustees may bring such actions. The application has no reasonable prospect of success and must be dismissed under section 31A(2) of the Federal Court Act.

Court Disposition

Application dismissed

Orders

  • Amended Further Amended Application filed 12 February 2010 be dismissed.
  • Applicant to pay costs of third respondent, fourth respondent, and fifth respondent.