BANK OF SINGAPORE (AUSTRALIA) LIMITED v COTTERILL [1995] NSWCA 38

BANK OF SINGAPORE (AUSTRALIA) LIMITED v COTTERILL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, MEAGHER JA and POWELL JA 21 August 1995

[1995] NSWCA 38

BANKRUPTCY — property of bankrupt — trustee in bankruptcy purports to assign bankrupt's choses in action to son for payment of $10,000 plus covenant to pay 10% of recovery to trustee — whether within trustee's power to sell bankrupt's property — whether common law rules against champerty apply — meaning and effect of Bankruptcy Act 1966 (Cth)- held: Not timely to grant leave to appeal on a separated question before trial. Stein v Black [1955] 2 WLR 710 (HL) referred to.

CHAMPERTY & MAINTENANCE — champerty — chose in action — whether passes to trustee in bankruptcy — held: Reserved by CA.

Kirby P. The application for leave to appeal before the Court relates to the decision of Bainton J of 7 July 1995 upon a separated question which is stated in his Honour's reasons.

It is true that there are certain arguments of potential convenience which could warrant bringing the matter to this Court at this stage. In particular, any prospect that would save the parties, and the Court, the burden of a potentially long hearing in the event that the claimant/appellant were to succeed in an appeal by leave would have to be welcomed. However, having regard, amongst other things, to the observations in Lord Hoffman's speech in the House of Lords in Stein v Black [1995] 2 WLR 710 (HL) the Court is not of the opinion that the reasons of Bainton J are sufficiently attended by doubt as to warrant the grant of leave at this stage. That is not to say that the matter which is raised by the summons for leave may not be argued at a later stage if, following the conclusion of the litigation at first instance the claimant is still dissatisfied and wishes to bring the matter to this Court.