Federal Court of Australia
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BANKRUPTCY - Contract by bankrupt - Claim by estate agent for commission in respect of sale of asset of estate - Auction agency agreement made by bankrupts before bankruptcy and orally adopted by trustee - Sale to purchaser not introduced by claimant - Whether auction agency agreement binding upon trustee - Effect of non-disclaimer of contract - Effect of oral adoption of contract - Whether recovery precluded by Auctioneers and Agents Act - Entitlement of agent to prove in the bankruptcy for contingent liability to pay commission.
Bankruptcy Act 1966 ss. 58, 82, 133, 134
Auctioneers and Agents Act 1941 (NSW) ss. 20, 42AA
Luxor (Eastbourne) Limited v. Cooper £19411 A.C. 108, Alpha Trading Limited v. Dunnshaw-Patten Limited [19813 1 Q.B. 290,
Bentall, Horsley and Baldry v. Vicary [1931] 1 K.B. 253, Re Bastable; ex parte The Trustee (1901) 2 K.B. 518, Re Sneezum; ex parte Davis (1876) 3 Ch. D. 463, Titterton v. Cooper (1881) 9
Q.B.D. 473, Ellis and Company's Trustee v. Dixon-Johnson £1924] 1 Ch. 342 referred to.
WILCOX J.
SYDNEY 20 DECEMBER 1985
RE: PAMELA JUNE CLARK Ex parte BRIAN HENRY KAHLEFELDT MALCOLM ALBERT CLARK
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IN THE FEDERAL COURT OF AUSTRALIA
No. W157 of 1985 (No. P917 of 1984)
NEW SOUTH WALES DISTRICT REGISTRY
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GENERAL DIVISTON
RE: PAMELA JUNE CLARK (Now Ellis)
EX PARTE: BRIAN HENRY KAHLEFELDT Applicant
PAMELA JUNE CLARK (NOW ELLIS)
DALGETY-WINCHCOMBE ' F.G.C.
Respondents
JUDGE MAKING ORDER: WILCOX J. DATE OF ORDER: 20 DECEMBER 1985 WHERE MADE: SYDNEY
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. It be declared that:
a) Dalgety - Winchcombe F.G.C. is not entitled to be paid commission by the trustee of the estate of Pamela June Clark (now Ellis) as part of the costs, charges and expenses of the administration of the bankruptcy pursuant to s.109 (1)(a) of the Bankruptcy Act 1966;
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