The Official Trustee in Bankruptcy v Wells, Geoffrey John & Anor [1998] FCA 360

The Official Trustee in Bankruptcy v Wells, Geoffrey John & Anor [1998] FCA 360

Although the trustee had missed the 28 day election period through oversight, the delay was only about three weeks, the Court had power under s 33(1) to extend the s 60(3) period after expiry, the asserted prejudice did not justify refusal, and the proposed appeal was not so wholly untenable or completely lacking substance that it should be prevented from proceeding. The indemnity offered in relation to appeal costs also influenced the Court. The extension was therefore granted, with the applicant to pay the second respondent's costs on the usual party and party basis.

Jurisdiction
Australia
Judgment Date
06 February 1998
Procedural Posture
Bankruptcy Application / Application Under S 33(1) of the Bankruptcy Act 1966 (cth) to Extend Time for the Official Trustee to Elect Under S 60(3) to Prosecute Appeal Number 4023 of 1997 in the Court of Appeal in Queensland
Outcome
Application granted; time for the Official Trustee's election to prosecute the Queensland Court of Appeal appeal extended, with the applicant ordered to pay the second respondent's costs on the usual party and party basis.
Legal Topics
['extension of Time' 'election by Trustee to Prosecute Appeal' 'abandonment of Action' 'merits of Proposed Appeal' 'costs']
['bankruptcy' 'civil Procedure' 'employment'] ['extension of Time' 'election by Trustee to Prosecute Appeal' 'abandonment of Action' 'merits of Proposed Appeal' 'costs']

Case Brief

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Procedural Posture

Bankruptcy Application / Application Under S 33(1) of the Bankruptcy Act 1966 (cth) to Extend Time for the Official Trustee to Elect Under S 60(3) to Prosecute Appeal Number 4023 of 1997 in the Court of Appeal in Queensland

Legal Issues

  1. 1 ['Whether the Court should extend, after expiry, the 28 day period for the Official Trustee to elect under s 60(3) of the Bankruptcy Act 1966 (Cth) to prosecute an appeal.' 'Whether the merits of the proposed appeal were so lacking in substance that the extension should be refused.' 'Whether prejudice to the second respondent and costs considerations warranted refusing the extension or awarding solicitor and client costs.']

Ratio Decidendi

Although the trustee had missed the 28 day election period through oversight, the delay was only about three weeks, the Court had power under s 33(1) to extend the s 60(3) period after expiry, the asserted prejudice did not justify refusal, and the proposed appeal was not so wholly untenable or completely lacking substance that it should be prevented from proceeding. The indemnity offered in relation to appeal costs also influenced the Court. The extension was therefore granted, with the applicant to pay the second respondent's costs on the usual party and party basis.

Court Disposition

Application granted; time for the Official Trustee's election to prosecute the Queensland Court of Appeal appeal extended, with the applicant ordered to pay the second respondent's costs on the usual party and party basis.

Orders

  • ['Pursuant to s 33(1) of the Bankruptcy Act 1966, the time for an election by the Official Trustee under s 60(3) of the Act to prosecute appeal number 4023 of 1997 in the Court of Appeal in Queensland be extended to a day being seven days after the date of the hearing of this application.' "The applicant Trustee pay...