Brien v P & E Phontos Pty Ltd (In the matter of Estate of Metchler) [1999] FCA 1072
The court has power to extend time for the trustee’s election under s 33(c) of the Bankruptcy Act even after assignment of the right to conduct the action to a non-bankrupt assignee; sufficient grounds exist to grant extension subject to compensation for delay.
- Parties
- Applicant: Richard C Brien; Respondent: P & E Phontos Pty Ltd
- Jurisdiction
- Australia
- Judgment Date
- 06 August 1999
- Procedural Posture
- Bankruptcy Application / Application to Extend Time for Trustee's Election Under Bankruptcy Act
- Outcome
- Application allowed; extension of time granted
- Legal Topics
- Extension of Time, Trustee's Election, Assignment of Causes of Action
Case Brief
Summary, issues, holding and outcome
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Parties
Richard C Brien
Applicant
P & E Phontos Pty Ltd
Respondent
Procedural Posture
Bankruptcy Application / Application to Extend Time for Trustee's Election Under Bankruptcy Act
Legal Issues
- 1 Whether the court has power to extend time for trustee's election to prosecute an action after assignment of the causes of action
- 2 Whether adequate grounds exist for exercise of discretion to extend time
Ratio Decidendi
The court has power to extend time for the trustee’s election under s 33(c) of the Bankruptcy Act even after assignment of the right to conduct the action to a non-bankrupt assignee; sufficient grounds exist to grant extension subject to compensation for delay.
Court Disposition
Application allowed; extension of time granted
Orders
- Time for trustee's election to prosecute extended for 21 days from date of judgment upon undertaking to pay respondent's costs on an indemnity basis
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