Gargan, Peter Alexander v the Official Trustee in Bankruptcy [1995] FCA 1123

Gargan, Peter Alexander v the Official Trustee in Bankruptcy [1995] FCA 1123

The appeal was dismissed because the request that the Trustee assign to Mr Gargan choses in action vested in the Trustee was misconceived; those choses in action were for the Trustee to consider and, if appropriate, prosecute for creditors and the administration of the estate. The trial judge was correct to refuse...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 November 1995
Procedural Posture
Bankruptcy Appeal / On Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['assignment of Choses in Action' 'trustee in Bankruptcy Duties' 'standing of Bankrupt' 'administration of Bankrupt Estate' 'costs']
['bankruptcy'] ['assignment of Choses in Action' 'trustee in Bankruptcy Duties' 'standing of Bankrupt' 'administration of Bankrupt Estate' 'costs']

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Procedural Posture

Bankruptcy Appeal / On Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether choses in action vested in the Official Trustee in Bankruptcy should be assigned to the bankrupt.' 'Whether the trial judge erred in refusing orders sought in paragraph (1) of the application.' 'Whether the procedure adopted below was unfair or erroneous.' 'Whether costs should be paid personally by Mr Gargan or out of the assets of the estate.']

Ratio Decidendi

The appeal was dismissed because the request that the Trustee assign to Mr Gargan choses in action vested in the Trustee was misconceived; those choses in action were for the Trustee to consider and, if appropriate, prosecute for creditors and the administration of the estate. The trial judge was correct to refuse the orders sought in paragraph (1), and the procedure adopted below was fair, explained to Mr Gargan, and one with which he concurred.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The costs of the respondent and the costs of the parties on behalf of whom Mr W. Cochrane and Mr F.J. Toy appear, be taxed and paid out of the assets of the estate.' "There will be no order as to Mr Gargan's costs."]