Re Wright, Fay Therese & Anor v Cruise, Reginald Laurence & Anor [1984] FCA 35

CATCHWORDS

Bankruptcy - Relation back - Claim by solicitor for petitioning

creditor to lien over funds paid by judgment debtor.

Bankruptcy Act, 1966

RE: FAY THERESE WRIGHT and DAVID LEWIS CLOUT and REGINALD LAURENCE CRUISE and CHRISTOPHER CHARLES HAGAN

No. W312 of 1983

Beaumont, J. 2 March, 1984.

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA

IN THE STATE OF NEW SOUTH WALES

THE AUSTRALIAN CAPITAL TERRITORY

BANKRUPTCY DISTRICT

GENERAL DIVISION No. W312 of 1983

RE: FAY THERESE WRIGHT

A bankrupt

AND: DAVID LEWIS CLOUT

Applicant

AND: REGINALD LAURENCE CRUISE and CHRISTOPHER CHARLES HAGAN

Respondents

ORDER

Judge making order: Beaumont, J. Date order made: 2 March, 1984.

Where order made: Sydney

THE COURT ORDERS THAT:

i. Declare that the second respondent has no lien over

the sum of $6,282.73 the subject of this application.

2.

2. Order that the second respondent pay the said sim to the applicant as trustee of the bankrupt estate of Fay

Therese Wright.

IN THE FEDERAL COURT OF AUSTRALIA IN THE STATE OF NEW SOUTH WALES

THE AUSTRALIAN CAPITAL TERRITORY

BANKRUPTCY DISTRICT

GENERAL DIVISION No. W312 of 1983

RE: PAY THERESE WRIGHT

A bankrupt

AND: DAVID LEWIS CLOUT

Applicant

AND: REGINALD LAURENCE CRUISE and CHRISTOPHER CHARLES HAGAN

Respondents

CORAM: Beaumont, J.

DATED: 2 March, 1984.

REASONS FOR JUDGMENT

This is an application made by the trustee of the

bankrupt estate of Fay Therese Wright for a declaration that the sum of $6,282.73 held by the second respondent on behalf of the first respondent is the property of the applicant as such trustee. Consequential relief is also sought. The

farst respondent was the petitioning creditor on whose

2.

petition the estate of the bankrupt was sequestrated. The second respondent was then the solicitor for the first

respondent -

'In May 1982, the first respondent obtained judgment against the bankrupt in the District Court in the sum of $6,000 for moneys lent. In October 1982, the first respondent served upon the bankrupt a bankruptcy notice based on the District Court judgment. The bankrupt did not comply with the notice with the consequence that she committed an act of bankruptcy on 9 November, 1982. On 24 November, 1982, the first respondent presented a bankruptcy petition against the bankrupt, claiming to be a creditor in the sum of $6,000. 'The petition was returnable on 7 March, 1983 and on that date, the bankrupt appeared in person, applied for and was granted an adjournment of the petition until 18 April, 1983 on the ground that she was solvent and