Freeman v Joiner

[2005] FCAFC 149

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Interrogate

Catchwords

1. Bankruptcy
2. › Trustees in bankruptcy
3. › Duties of trustee
4. › Assignment of causes of action
5. › Duty to consider request for assignment
6. › Whether trustee entitled to require funds for legal advice before considering assignment request
7. › Whether further pursuit of actions would be frivolous and vexatious
8. › Bankruptcy Act 1966 (Cth), ss 60, 178
1. Bankruptcy
2. › Stay of legal proceedings
3. › Deemed abandonment of proceedings under s 60(3)
4. › Effect on underlying cause of action
5. › Whether cause of action survives deemed abandonment of proceedings
6. › Bankruptcy Act 1966 (Cth), s 60(2), (3)
1. Bankruptcy
2. › Trustees in bankruptcy
3. › Assignment of causes of action
4. › Public duty of trustee
5. › Whether trustee should assign cause of action with no reasonable prospect of success
6. › Bankruptcy Act 1966 (Cth), s 178

Quick Take

Where there are strong indications that causes of action may be frivolous and vexatious, a trustee in bankruptcy may require the bankrupt to provide funds for legal advice before considering a request for assignment, particularly where the estate has no funds. Deemed abandonment of proceedings under s 60(3) of the Bankruptcy Act operates only on the proceedings, not the underlying cause of action, which remains capable of assignment or fresh prosecution.