Stone v ACE-IRM Insurance Broking P/L

[2003] QCA 218

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Striking out proceedings
3. › Abuse of process
4. › Proceedings commenced by person without standing
5. › Cause of action vested in trustee in bankruptcy
6. › Whether proceedings a nullity or curable irregularity
7. › Uniform Civil Procedure Rules 1999 (Qld), rr 371, 375, 376, 378
1. Practice and Procedure
2. › Amendment of pleadings
3. › Power to amend after expiry of limitation period
4. › Defective proceedings commenced within time
5. › Whether amendment to plead assignment permissible
6. › Uniform Civil Procedure Rules 1999 (Qld), rr 375, 376
1. Bankruptcy
2. › Property of bankrupt
3. › Cause of action vesting in trustee
4. › Whether cause of action revests on discharge
5. › Whether equitable assignment by trustee
6. › Bankruptcy Act 1966 (Cth), s 116
1. Practice and Procedure
2. › Nullity and irregularity
3. › Distinction between void proceedings and curable irregularity
4. › Whether concept of nullity applies to proceedings in superior court
5. › Scope of remedial powers under rules of court

Quick Take

Proceedings commenced by a discharged bankrupt in respect of a cause of action vested in the trustee in bankruptcy are not a nullity but are defective and capable of cure by amendment under the UCPR, including by pleading a subsequent assignment from the trustee. The extent of the court's remedial powers under the rules of procedure defines what defects can be cured, rather than the remedial powers being qualified by a characterisation of proceedings as a nullity. Francis v National Mutual Life Association is distinguishable where the UCPR rather than the former Rules of the Supreme Court applies.