Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Lovell v Penkin, in the matter of the bankrupt estate of Kevin Michael Penkin [2008] FCA 637
BANKRUPTCY AND INSOLVENCY – stay of claim in Supreme Court in negligence alone against a solicitor – application for leave to take a fresh step in the proceeding – granting of leave – imposing of conditions – whether leave is required in a claim in negligence alone against a solicitor – whether such a claim is provable in the bankruptcy – other considerations such as set-off – bilateral relationship – s 117 of the Bankruptcy Act 1966 (Cth) and the availability of insurance
Bankruptcy Act 1966 (Cth) ss 58, 58(3), 58(3)(b), 82(1), 82(2), 117 Crown Suits Act 1947 (WA) Aliferis v Kyriacou (2000) 179 ALR 477 Allanson v Midland Credit Ltd (1977) 30 FLR 108 Chittick v Maxwell (1993) 118 ALR 728 Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234 Kattirtzis v Zaravinos [2001] FCA 1158 Midland Credit Ltd v Official Trustee in Bankruptcy (1982) 68 FLR 53 Re Sharp, Peter Lyle & Ex Parte: Tietyens Investments Pty Ltd (in liq) & Anor v Official Trustee [1998] FCA 1367 IN THE MATTER OF THE BANKRUPT ESTATE OF KEVIN MICHAEL PENKIN AVON FRANCIS LOVELL v KEVIN MICHAEL PENKIN and OFFICIAL TRUSTEE IN BANKRUPTCY
WAD 31 of 2008
MCKERRACHER J
9 MAY 2008
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 31 of 2008
IN THE MATTER OF THE BANKRUPT ESTATE OF KEVIN MICHAEL PENKIN BETWEEN: AVON FRANCIS LOVELL
Applicant
AND: KEVIN MICHAEL PENKIN
First Respondent
OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent
JUDGE: MCKERRACHER J
DATE OF ORDER: 9 MAY 2008
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. To the extent such leave is necessary by reason of the provisions of s 58(3) of the Bankruptcy Act 1966 (Cth), that Avon Francis Lovell have leave to continue and take fresh steps in proceedings instituted by him in the Supreme Court of Western Australia against Kevin Michael Penkin in action CIV 2355 of 2005 (the Action). 2. The granting of leave is conditional upon the applicant, Mr Lovell, undertaking to the Court in writing within 14 days that: (a) he will not seek final relief in the Action without having given seven days notice to the office of the Official Trustee; (b) he will not oppose any application by the Official Trustee to be joined or heard in the Action. 3. Such leave does not extend to the taking of any step to enforce any judgment obtained in the Action without leave first being obtained from this Court. 4. There be no order as to costs, subject to the following order. 5. If any party wishes to make submissions which differ from the costs order made in the previous paragraph, written submissions should be filed and served within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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