Re Dosanjh, M. v Ex parte Duus, R.A. [1995] FCA 163

CATCHWORDS BANKRUPTCY - property available to creditor - whether money received as special damages available to creditor Bankruptcy Act 1966 ss 60(4), 116(1), 116(2)(g), 116(2)(n), 116(2D)(b) Cox v Journeaux (No 2) (1935) 52 CLR 713 Refd Faulkner v Bluett (1981) 52 FLR 115 Cons Mannigel v Hewlett Phelps (unreported decision of New South Wales Court of Appeal, 12.6.91) Cons Beckham v Drake (1849) 2 HLC 599 Cons Wilson v United Counties Bank Ltd [1920] AC 102 Cons Re Linklater Ex parte: Mount (unreported decision of von Doussa J 29.10.90) Cons Griffiths v Kerkemeyer (1977) 139 CLR 161 Refd Van Gervan v Fenton (1992) 66 ALJR 828 Refd Re Manjit Dosanjh; Ex parte: Ross Andrew Duus No QB843 of 1994 Kiefel J Brisbane 29 March 1995

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND No. QB843 of 1994 RE: MANJIT DOSANJH EX PARTE: ROSS ANDREW DUUS Trustee of the Estate of MANJIT DOSANJH JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 29 March 1995 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND No. QB843 of 1994 RE: MANJIT DOSANJH EX PARTE: ROSS ANDREW DUUS Trustee of the Estate of MANJIT DOSANJH CORAM: Kiefel J. DATE: 29 March 1995 PLACE: Brisbane REASONS FOR JUDGMENT The trustee seeks a declaration that the sum of $29,313 is property which is divisible amongst the bankrupt's creditors under s.116(1) Bankruptcy Act 1966 and for orders declaring that the trustee has a beneficial interest in properties to which those monies have been applied. The sum is in fact the amount owed by the bankrupt to the petitioning creditor, a hospital authority, and represents charges for services rendered to him consequent upon a motor vehicle accident in which he was injured. By a deed of release dated 20 February 1992 the bankrupt agreed to accept the sum of $300,000 plus his reasonable legal costs in full settlement of all claims for damages for personal injuries which he may have against the driver of the vehicle in question, one Olano. He had previously brought action in the Supreme Court of Queensland for damages. In a letter dated 18 February 1992 from his then solicitors to the Department of Social Security it was said that the amount of $300,000 had been notionally allocated by them (perhaps for the purpose of advising their client as to its acceptance) as follows: General Damages $60,000.00 Out of Pocket Expenses including hospital bills 30,000.00 Economic loss from date of accident to date of trial 50,000.00 Future Economic loss 160,000.00 It does not appear that any attempt was made to levy or execute upon the bankrupt's property for the hospital charges unpaid, and bankruptcy proceedings were commenced. On 4 March 1992 Mr Dosanjh and his wife purchased land at Black Diamond Crescent, Edens Landing for the sum of $123,000 and on about 11 March 1993 further land at Wantana Crescent, Edens Landing for $55,000. A reference in an affidavit by the insolvency clerk to the possibility that the bankrupt may have previously owned the second-mentioned land is not borne out by independent records. The bankrupt has advised the trustee that he constructed a house at Wantana Crescent at a cost of about $100,000. All these monies were said to have been paid from the proceeds of the settlement of his claim for damages. Section 116(2)(g) of the Act provides that the property divisible amongst creditors does not extend to: "(g) any right of the bankrupt to recover damages or compensation -