Re Brazel, Allan Joseph Ex Parte; Jefferson, Philip Gregory & Ors [1995] FCA 1092

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QB 1471 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ALLAN JOSEPH BRAZEL Bankrupt EX PARTE: PHILIP GREGORY JEFFERSON and JAY ARSCOTT STEVENSON Applicant trustees AND: METWAY BANK LTD Respondent MINUTES OF ORDER JUDGE MAKING ORDER: Spender J DATE OF ORDER: 15 December 1995 WHERE MADE: Brisbane THE COURT ORDERS THAT: (1) the time within which the trustees are to make the election required by s. 60(3) of the Bankruptcy Act 1966 be extended to 4pm, 30 days from today; (2) the trustees pay to Metway Bank Ltd its costs of and incidental to the trustees' application filed 12 December 1995; (3) the trustees' obligation in respect of the costs order that I have made may be met by their having recourse to the funds in the estate. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QB 1471 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ALLAN JOSEPH BRAZEL Bankrupt EX PARTE: PHILIP GREGORY JEFFERSON and JAY ARSCOTT STEVENSON Applicant trustees AND: METWAY BANK LTD Respondent CORAM: Spender J DATE: 15 December 1995 PLACE: Brisbane REASONS FOR JUDGMENT This is the third application pursuant to s. 33(1)(c) of the Bankruptcy Act 1966 ('the Act') seeking an extension of the time within which the trustee in bankruptcy of the estate of Allan Joseph Brazel may elect, pursuant to ss 60(2) and (3) of the Act, to prosecute an action in the Supreme Court against the respondent bank. The trustee was notified of the action some time before 19 July 1995. On 20 September 1995 the trustee sought an extension of time within which to make the election. An extension of 30 days was granted on that day by Cooper J. An election was not made within that time but, on 16 October 1995, Kiefel J entertained a further application for an extension of time within which the trustee might make the election and extended the time for 60 days. That period expires today, 15 December 1995. By an application filed on 12 December 1995, the trustees, Philip Gregory Jefferson and Jay Arscott Stevenson, seek a further extension of the time allowed for the making of the election to which s. 60(3) is directed. That subsection simply provides: " If the trustee does not make such an election within 28 days after notice of the action is served upon him by a defendant or other party to the action, he shall be deemed to have abandoned the action. " In Re Collins; Ex parte Official Trustee in Bankruptcy v Bracher (1986) 10 FCR 209, Burchett J held that in the circumstances of that case an extension of time was not necessary. However, he noted in that case the authorities which establish that if, by reason of the operation of the statute, an action is deemed to be abandoned, the trustee is not barred from bringing a subsequent action founded on the same cause. What that would mean, however, is that, in the circumstances of this case, should the trustees seek the indemnity which, in a practical sense, is a necessary pre-condition for their electing to continue with the action, there would be some duplication in costs. If, on the other hand, the indemnity is not obtained, I think it would be plain that the trustee will formally abandon the action.