Burke v Stapleton [1970] HCA 3

High Court of Australia Barwick C.J. Kitto, Menzies, Windeyer and Owen JJ. Burke v Stapleton [1970] HCA 3

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1970, Feb. 19 Barwick C.J.

In this matter the appellants, who are the personal representatives of William Quirk and Patrick Quirk, both deceased, seek a declaration that by reason of the lapse of time and the provisions of s. 98 (3) of the Bankruptcy Act 1924-1965 (the Act) the official receiver of the bankrupt estates of William and Patrick Quirk now has no claim to certain land which formed part of those estates when the order for sequestration was made and an order that such land be transferred by the official receiver to them.

I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and, as I fully agree with them and the conclusion to which they lead, I have no need to do more than to say that, in my opinion, the respondent has no need to make any claim within the meaning of s. 98 (3) of the Act to any estate or interest in the subject land. All the estate and interest in that land was effectively vested in the former official receiver of the bankrupts' estates. He was its registered proprietor. By virtue of the order of the Bankruptcy Court made pursuant to s. 26 of the Act the respondent is now the official receiver of those bankrupt estates. The need to have the necessary notations made on the relevant certificate of title to replace the name of the former official receiver by the name of the respondent does not involve in the present circumstances the making of any claim to the land within the meaning of s. 98 (3) nor does the resistance by the respondent of the appellants' application involve such a a claim.

In my opinion, the appeal should be dismissed.