Peter Tomson v Frank John Boitano [2011] NSWSC 527

Peter Tomson v Frank John Boitano [2011] NSWSC 527

The plaintiff's first cause of action was a professional negligence claim for the loss of a chance to recover damages for malicious prosecution. It accrued on or about 27 June 2001, after the commencement of the plaintiff's bankruptcy and before his discharge. Its essential nature and origin were not personal injury or wrong done to the bankrupt within s 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth), but a lost cause of action connected with pecuniary and property interests. It was therefore after-acquired property divisible among creditors and vested in the Official Trustee. The plaintiff had no standing to commence or maintain the first cause of action, and the second and third causes...

Jurisdiction
Australia
Judgment Date
09 June 2011
Procedural Posture
Civil Proceedings for Professional Negligence Arising From an Alleged Lost Malicious Prosecution Claim / Defendants' Notice of Motion for Summary Dismissal Under UCPR R 13.4 And, Alternatively, Security for Costs Under UCPR R 42.21 And/or Inherent Jurisdiction
Outcome
Statement of claim dismissed; plaintiff ordered to pay defendants' costs.
Legal Topics
['summary Dismissal' 'standing of Bankrupt Plaintiff' 'property Divisible Among Creditors' 'exception for Personal Injury or Wrong Done to Bankrupt' 'loss of Chance' 'malicious Prosecution' 'security for Costs']
['civil Procedure' 'bankruptcy' 'professional Negligence' 'torts'] ['summary Dismissal' 'standing of Bankrupt Plaintiff' 'property Divisible Among Creditors' 'exception for Personal Injury or Wrong Done to Bankrupt' 'loss of Chance' 'malicious Prosecution' 'security for Costs']

Case Brief

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Procedural Posture

Civil Proceedings for Professional Negligence Arising From an Alleged Lost Malicious Prosecution Claim / Defendants' Notice of Motion for Summary Dismissal Under UCPR R 13.4 And, Alternatively, Security for Costs Under UCPR R 42.21 And/or Inherent Jurisdiction

Legal Issues

  1. 1 ["Whether, by reason of the plaintiff's bankruptcy, the plaintiff had standing to bring and maintain the professional negligence claim against the defendants." 'Whether the first cause of action was property divisible among creditors and vested in the Official Trustee under the Bankruptcy Act 1966 (Cth).' 'Whether the claim fell within the exception in s 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth) for a right to recover damages or compensation for personal injury or wrong done to the bankrupt.' 'Whether the proceedings should be summarily dismissed under UCPR r 13.4.' 'Whether, if the proceedings were not dismissed, security for costs should be ordered because the plaintiff was ordinarily resident outside New South Wales.']

Ratio Decidendi

The plaintiff's first cause of action was a professional negligence claim for the loss of a chance to recover damages for malicious prosecution. It accrued on or about 27 June 2001, after the commencement of the plaintiff's bankruptcy and before his discharge. Its essential nature and origin were not personal injury or wrong done to the bankrupt within s 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth), but a lost cause of action connected with pecuniary and property interests. It was therefore after-acquired property divisible among creditors and vested in the Official Trustee. The plaintiff had no standing to commence or maintain the first cause of action, and the second and third causes...

Court Disposition

Statement of claim dismissed; plaintiff ordered to pay defendants' costs.

Orders

  • ['The statement of claim filed 25 August 2010 is dismissed.' "The plaintiff is to pay the defendant's costs of the proceedings."]