Clyne, Peter v Andrew, William Edward & Anor [1984] FCA 50

Clyne, Peter v Andrew, William Edward & Anor [1984] FCA 50

The Bankruptcy Act permits the Court to allow a creditor to intervene in a bankrupt's application even where the Act does not expressly provide a right of audience. The Deputy Commissioner is permitted to intervene as a respondent, but with conditions to ensure trustees’ primary carriage of the case, given the unusual and complex circumstances and the major creditor’s special knowledge.

Parties
Applicant: Peter Clyne; First Respondent: William Edward Andrew; Second Respondent: John William O'Brien; Intervener / Respondent (joined): Deputy Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
14 March 1984
Procedural Posture
Bankruptcy Application / Interlocutory Motion for Intervention and Joinder
Outcome
Deputy Commissioner of Taxation granted leave to intervene and joined as respondent. Directions made regarding filing affidavits and case summary. Liberty reserved to apply to dismiss the Deputy Commissioner as a party. Final hearing dates set. Costs reserved.
Legal Topics
Leave to Travel (bankrupt), Intervention by Creditor, Joinder of Party, Court Discretion to Allow Intervention
Bankruptcy Leave to Travel (bankrupt) Intervention by Creditor Joinder of Party Court Discretion to Allow Intervention

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Parties

Peter Clyne

Applicant

William Edward Andrew

First Respondent

John William O'Brien

Second Respondent

Deputy Commissioner of Taxation

Intervener / Respondent (joined)

Procedural Posture

Bankruptcy Application / Interlocutory Motion for Intervention and Joinder

Legal Issues

  1. 1 Does the Bankruptcy Act give the Court power to permit a creditor to intervene or be joined on an application by a bankrupt for leave to travel?
  2. 2 Should the Court's discretion be exercised to permit intervention in this case?

Ratio Decidendi

The Bankruptcy Act permits the Court to allow a creditor to intervene in a bankrupt's application even where the Act does not expressly provide a right of audience. The Deputy Commissioner is permitted to intervene as a respondent, but with conditions to ensure trustees’ primary carriage of the case, given the unusual and complex circumstances and the major creditor’s special knowledge.

Court Disposition

Deputy Commissioner of Taxation granted leave to intervene and joined as respondent. Directions made regarding filing affidavits and case summary. Liberty reserved to apply to dismiss the Deputy Commissioner as a party. Final hearing dates set. Costs reserved.

Orders

  • Deputy Commissioner of Taxation granted leave to intervene in the application by the bankrupt filed on 13 March 1984.
  • Deputy Commissioner of Taxation joined as a respondent to the application.