Federal Court of Australia

Sampson in his capacity as trustee of the bankrupt estates of Van Vlymen v Agrinova Pty Ltd [2022] FCA 529

ORDERS

THE COURT ORDERS THAT:

Interlocutory application

1.    TJ & P Pty Ltd as Trustee for the Post Family Trust (ACN 118 000 516) be substituted as applicant in place of David Sampson in his capacity as trustee of the bankrupt estates of Willem Johan Van Vlymen and Margriet Van Vlymen.

2.    The costs of the first, third and fourth respondents of the interlocutory application filed on 31 March 2022 be reserved but otherwise there be no order as to costs in respect of it.

3.    The costs of the respondents for the period during which David Sampson was on the record as applicant in his capacity as the trustee of the bankrupt estates of Willem Johan Van Vlymen and Margriet Van Vlymen be reserved.

Case management

4.    The applicant file and serve an amended originating application and statement of claim on or before 13 May 2022.

5.    The applicant serve any outlines of lay evidence on which it proposes to rely on or before 20 May 2022 and give notice to the respondents in respect of properties in the Solomon Islands about which valuation evidence is required.

6.    The first, third and fourth respondents file and serve their defence by 4 June 2022.

7.    The applicant file and serve any expert evidence on or before 30 June 2022.

8.    The respondents serve any outlines of lay witness evidence on which they propose to rely on or before 15 July 2022.

9.    The respondents file and serve any expert evidence in reply on or before 22 September 2022.

10.    The experts in each discipline confer without parties or lawyers and provide a joint report specifying the issues on which they agree and disagree, providing short reasons for any disagreement, on or before 14 October 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application by David Sampson, the trustee in bankruptcy of the original applicants, Margriet Van Vlymen and Willem Johan Van Vlymen. Mr Sampson was appointed trustee on the filing of the debtor’s petition by each of the bankrupts on 29 June 2021. He had made an election under s 60(2) of the Bankruptcy Act 1966 (Cth) to continue to prosecute this proceeding on behalf of the bankrupts’ estates and on 8 October 2021 I substituted the trustee in his capacity as trustee in bankruptcy in place of the now bankrupts. Mr Sampson seeks now to substitute TJ & P Pty Ltd as trustee for the Post Family Trust (the assignee) as applicant in the proceeding.

2    The basis of this application is a deed of assignment dated 18 March 2022, as varied by a deed of variation made on 8 April 2022 (compendiously, the assignment), between the trustee and the assignee. Under the assignment, the trustee assigned the chose in action comprising the bankrupts’ interest in the subject matter of the proceeding to the assignee as a purchaser for value. No party opposes the substitution of the assignee.

Consideration

3    It has long been the law that a trustee in bankruptcy can assign property comprising his or her interest in the subject matter of a proceeding to a purchaser for value: Campbells Cash & Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386 at 428 [75] per Gummow, Hayne and Crennan JJ. They referred to Seear v Lawson (1880) 15 Ch D 426. In Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 at 563C–565D, Foster, von Doussa and Sundberg JJ applied Seear 15 Ch D 426 and held that a trustee in bankruptcy could make such an assignment even without specifying the precise cause of action.

4    The now byzantine provisions of the Bankruptcy Act, deal with such an assignment in the Insolvency Practice Schedule (Bankruptcy) in Sch 2, which provides in s 100-5(1) that the trustee of a regulated debtor’s estate may assign any right to sue that is conferred on the trustee by the Act.

5    I am satisfied by the trustee’s evidence that on its face, the assignment to the assignee, of his legal right to the chose in action comprising the subject matter of the bankrupts’ cause of action in which he is now substituted as applicant appears to be effective, within the meaning of s 12 of the Conveyancing Act 1919 (NSW). I am also satisfied that, on 12 April 2022, the trustee gave notice of the assignment to the creditors of the bankrupt estates (s 100-5(3)).

6    Because each of the respondents to the proceeding does not oppose and does not wish to be heard on whether the substitution Mr Sampson seeks ought be made, and the assignment appears to be effective and in accordance with s 100-5(1), I am satisfied that it is appropriate to order that the assignee be substituted as applicant in the proceeding in place of the trustee.

Associate:

Dated:    10 May 2022

SCHEDULE OF PARTIES