Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091

Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091

The plaintiffs' right to sue for damages in negligence vested in the trustee upon bankruptcy. Upon discharge, that right did not divest from the trustee and revest in the plaintiffs; no assignment was made. Therefore, the proceedings are incompetent and must be dismissed.

Parties
First Plaintiff: Lawrence Drake; Second Plaintiff: Judith Drake; First Defendant: Neale Marshall; Second Defendant: Charles Parisi
Jurisdiction
Australia
Judgment Date
06 August 2015
Procedural Posture
Civil / Summary Dismissal Application
Outcome
Claim dismissed
Legal Topics
Summary Dismissal, Bankruptcy, Vesting of Causes of Action
Civil Procedure Summary Dismissal Bankruptcy Vesting of Causes of Action

Case Brief

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Parties

Lawrence Drake

First Plaintiff

Judith Drake

Second Plaintiff

Neale Marshall

First Defendant

Charles Parisi

Second Defendant

Procedural Posture

Civil / Summary Dismissal Application

Legal Issues

  1. 1 Whether the right to bring proceedings divested from the trustee upon discharge from bankruptcy
  2. 2 Whether plaintiffs have standing to sue after discharge from bankruptcy without assignment from trustee
  3. 3 Whether claim discloses a reasonable cause of action

Ratio Decidendi

The plaintiffs' right to sue for damages in negligence vested in the trustee upon bankruptcy. Upon discharge, that right did not divest from the trustee and revest in the plaintiffs; no assignment was made. Therefore, the proceedings are incompetent and must be dismissed.

Court Disposition

Claim dismissed

Orders

  • The amended statement of claim filed 30 March 2015 is dismissed.
  • The proceedings are dismissed.