Wakeling v Wade [2011] FCA 1292

Wakeling v Wade [2011] FCA 1292

The assignments of bare causes of action from GSR and AE to Ms Wade were ineffective and unenforceable either at law or in equity as neither Ms Wade nor her trustee had a genuine commercial interest in them; accordingly, the causes of action did not vest in her personally or as trustee for others, but vested (if at all) in the respective companies or, upon deregistration, in ASIC. Any personal causes of action Ms Wade had against Mr Wakeling vested in her trustee in bankruptcy on her bankruptcy and did not revest in her. The evidence did not establish any trust in favour of Mr Trnka or Ms Clarke. The insurer was authorised to defend in Mr Wakeling's name. Declarations to this effect would...

Jurisdiction
Australia
Judgment Date
15 November 2011
Procedural Posture
Application for Declarations, Cross Claims and Notices of Motion in Two Related Bankruptcy/equity/trust Proceedings / Judgment Following Contested Hearings, Reasons for Judgment, Final Orders to Follow After Submissions
Outcome
Declarations made in favour of applicant Mr Wakeling; all cross-claims, applications and notices of motion by Ms Clarke, Mr Trnka, and Ms Wade dismissed; no injunction issued.
Legal Topics
['vested Causes of Action in Bankruptcy' 'assignment of Causes of Action' 'trusts Over Causes of Action' 'enforceability of Assignments' 'statute Barred Claims' "authority of Insurer to Defend Proceedings in Bankrupt's Name"]
['bankruptcy' 'equity' 'trusts and Trustees' 'civil Procedure'] ['vested Causes of Action in Bankruptcy' 'assignment of Causes of Action' 'trusts Over Causes of Action' 'enforceability of Assignments' 'statute Barred Claims' "authority of Insurer to Defend Proceedings in Bankrupt's Name"]

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Procedural Posture

Application for Declarations, Cross Claims and Notices of Motion in Two Related Bankruptcy/equity/trust Proceedings / Judgment Following Contested Hearings, Reasons for Judgment, Final Orders to Follow After Submissions

Legal Issues

  1. 1 ['Whether causes of action vested in trustee in bankruptcy under Bankruptcy Act 1966 (Cth)' 'Whether deeds of assignment of company causes of action to individual (Ms Wade) were effective or enforceable in law or equity' 'Whether causes of action were held in trust for others (e.g. Ms Clarke or Mr Trnka) to prevent vesting in the trustee' 'Whether assignments of bare causes of action in tort, contract or equity are enforceable' "Whether Mr Wakeling's indemnity insurer was authorised to maintain proceedings in his name without his or trustee's authority" 'Whether trustee in bankruptcy is obliged to assign causes of action to former bankrupt']

Ratio Decidendi

The assignments of bare causes of action from GSR and AE to Ms Wade were ineffective and unenforceable either at law or in equity as neither Ms Wade nor her trustee had a genuine commercial interest in them; accordingly, the causes of action did not vest in her personally or as trustee for others, but vested (if at all) in the respective companies or, upon deregistration, in ASIC. Any personal causes of action Ms Wade had against Mr Wakeling vested in her trustee in bankruptcy on her bankruptcy and did not revest in her. The evidence did not establish any trust in favour of Mr Trnka or Ms Clarke. The insurer was authorised to defend in Mr Wakeling's name. Declarations to this effect would...

Court Disposition

Declarations made in favour of applicant Mr Wakeling; all cross-claims, applications and notices of motion by Ms Clarke, Mr Trnka, and Ms Wade dismissed; no injunction issued.

Orders

  • ["Declarations that the causes of action in the Supreme Court proceedings vest in Ms Wade's trustee in bankruptcy and did not vest or revest in her, nor were they validly assigned to her or her trustee by the companies; assignments relied on by Ms Wade, Ms Clarke and Mr Trnka were ineffective; all applications and...