Cirillo & Another v Citicorp Australia Ltd and Others

[2004] SASC 293

Supreme Court of South Australia

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Interrogate

Catchwords

1. Personal Property
2. › Ownership and Possession
3. › Evidence of Ownership
4. › Whether de facto possession sufficient to ground claim for damages
5. › Whether presumption of ownership from possession rebutted by proof of superior title
1. Equity
2. › Equitable Remedies
3. › Injunctions
4. › Interlocutory Injunctions
5. › Undertaking as to Damages
6. › Whether discontinuance of proceedings amounts to admission injunction wrongly obtained
7. › Whether mere physical possession sufficient to enforce undertaking
1. Bankruptcy
2. › Trustees
3. › Property Vesting in Trustee
4. › Whether right to apply to enforce undertaking as to damages is 'property' within Bankruptcy Act 1966 (Cth)
5. › Whether right to apply is a chose in action assignable by deed
6. › Bankruptcy Act 1966 (Cth), ss 5, 58, 116, 134(1)
1. Estoppel
2. › Estoppel by Representation
3. › Whether party estopped from asserting ownership of property after representing it belonged to company
4. › Whether common law and equitable estoppel merged into single doctrine

Quick Take

The right to apply to a court to enforce an undertaking as to damages is not a chose in action but falls within the broad definition of 'property' in the Bankruptcy Act 1966 (Cth) and vests in the Official Trustee upon bankruptcy. A deed of assignment purporting to assign 'choses in action' does not transfer this right. Mere physical possession of property the subject of an injunction is insufficient to ground a claim for damages under an undertaking where a superior title is proved. Discontinuance of proceedings does not constitute an admission that an interlocutory injunction was wrongly obtained.