Carkeek v Weber [2025] FedCFamC2G 1842

Aware Industries Ltd v Robinson [1997] FCA 571; (1997) 75 FCR 600

Barranbali Pty Ltd v Pioneer Australia Pty Ltd (2021) 285 FCR 365

Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166

Bruckland v Newsame (1808) 170 ER 1026

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Coshott v Prentice [2018] FCAFC 179

De Lorenzo v De Lorenzo [2020] NSWCA 351

Deak v Estate of Late Nacinovich and Giurina [2024] VSC 710

Deputy Cmr of Taxation v Clyne [1984] FCA 345; (1984) 4 FCR 156

Dowell v Custombuilt Homes Pty Ltd [2004] WASCA 171

Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388

Ex parte Owen; Re Owen [1884] UKLawRpKQB 85; (1884) 13 QBD 113

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 241 ALR 32

Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407

Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149; (2006) 154 FCR 554

Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Joseph Richard Bryant v Commonwealth Bank of Australia [1995] FCA 971

Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 3) [2024] FCA 643

Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540

Ling v Commonwealth [1996] FCA 1646; (1996) 139 ALR 159

MacDonald v Official Trustee in Bankruptcy (2001) FCA 140

Menzies v Paccar Financial Pty Ltd [2011] FCA 460

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188

Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887

Probiotec Ltd v University of Melbourne [2008] FCAFC 5

Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No 2) (1994) 51 FCR 14

Re Luxtrend Pty Ltd (in Liq) [1997] 2 Qd R 86

Re McKerrell [1912] UKLawRpCh 109; [1912] 2 Ch 648

Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111

Re Thompson; Ex parte Thompson v Grimley Pty Ltd & Anor [1995] FCA 1148; (1995) 135 ALR 700

Roberts v Wayne Roberts Concrete Constructions Pty Ltd (2004) 208 ALR 532; [2004] NSWSC 734

Robson v Body Corporate for Sterling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494

Scook v Sims Construction Pty Ltd [2004] FCAFC 306

Sistrom v Urh [1991] FCA 315; (1992) 40 FCR 550

Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1

State of Queensland v Mr Stradford (A Pseudonym) (2025) 421 ALR 376

Stec v Orfanos [1999] FCA 457

Thai v DCT (1994) 53 FCR 252

Toogood v Gott [2023] FCA 1521

Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Weber v Carkeek [2020] VSC 366

Re Westerton [1919] 2 Ch 104

Zahra 15 Pty Ltd v Saffron SA Pty Ltd (2023) 173 IPR 270

Mr Riley Bouveng, for the first and second applicants

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The second and third applicants' application for leave to re-open their case be refused.
2. The respondent's application to review the decision of the Registrar to make a sequestration order on 10 July 2025 be allowed.
3. The sequestration order made on 10 July 2025 be set aside.
4. The creditors' petition presented on 14 November 2024 be dismissed.
5. Liberty to apply be reserved in respect of the question of the costs, remuneration and expenses of the respondent's former trustee in bankruptcy.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for review of a sequestration order made by Registrar Wilson (Registrar) on 10 July 2025 (Sequestration Order) against the estate of the respondent (Respondent), Mark Paul Weber, who was made a bankrupt on a creditors' petition (Creditors' Petition) prosecuted by the second applicant (Second Applicant) and third applicant (Third Applicant) (Remaining Applicants). The Respondent is the applicant for review.
2. I describe the Second and Third Applicants as the Remaining Applicants because, after the presentation of the Creditors' Petition, the first applicant (First Applicant) was made a bankrupt, and on 29 May 2025, a Registrar made an order that "The application by the first Applicant is dismissed" (Dismissal Order).
3. On 10 July 2025, the Respondent applied to the Court for a review of the exercise of power by the Registrar pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) (Review Application).
4. The nature of the hearing before me is a hearing de novo of the Creditors' Petition (Hearing).

1. In 2018, the Respondent commenced proceedings against Ewan Aubrey Carkeek and Lorraine Kathleen Carkeek in the Victorian Civil and Administrative Tribunal (VCAT) in respect of a claim of breach of contract. Allison Dorathea Carkeek was subsequently joined as a third respondent.
2. On 7 December 2018, Senior Member L Forde dismissed the proceeding against the third respondent, Alison Dorathea Carkeek, and made the following orders:

...

1. Mark Weber must pay Ewan Carkeek and Lorraine Carkeek the sum of $84,014.35.

2. Ewan Carkeek and Lorraine Carkeek must pay Mark Weber the sum of $10,000.

4. Ewan Carkeek must pay Mark Weber the sum of $125,142.42

1. On 14 March 2019, VCAT ordered the Respondent to pay 90% of Ewan Aubrey Carkeek, Lorraine Kathleen Carkeek and Allison Dorathea Carkeek costs incurred in the VCAT proceeding (VCAT Costs Order).
2. On 23 April 2019, Ewan Aubrey Carkeek, Lorraine Kathleen Carkeek and Allison Dorathea Carkeek (Original Applicants) filed a summons for taxation in the Supreme Court of Victoria in relation to the costs order by VCAT.
3. In April 2019, the Original Applicants entered into and executed a document entitled "deed of assignment of debt/chose in action" (Deed of Assignment).[1]
4. The Deed of Assignment recited (as written):

(a) By an Award made by the Victorian Civil and Administrative Tribunal on 7 December 2018, it was ordered that Mark Paul Weber pay to The Assignee and the First Assignor, the sum of $84,014.35 ("the Award"); and

(b) On 7 March 2019, the Assignee and the First and Second Assignors made joint application to VCAT for an order that the said Mark Paul Weber pay their costs of the proceedings, and the Tribunal has reserved that ruling ("the Costs Ruling").

(c) The First and Second Assignors have agreed to assign all their legal and equitable rights under the Award and under the pending determination of the Costs Ruling to the Assignee

That on the signing of this Deed, and upon the payment by the Assignor of the sum of $1.00 to the First and Second Assignees (receipt whereof is acknowledged by their respective execution hereof), the First Assignee and the Second Assignee hereby absolutely assign all their legal and equitable interest in or arising under the Award and the Costs Ruling, to the Assignor.

1. A notice of assignment was given which provides:[2]

Take notice that Lorraine Carkeek and Alison Carkeek both of [redacted] have absolutely assigned all their right title and interest, both legal and equitable to Ewan Carkeek also of [redacted] in:

a. the award made by the Victorian Civil and Administrative Tribunal on 7 December 2018 in the proceedings determined between yourself and Lorrain Carkeek, Alison Carkeek and Ewan Carkeek; and

1. their interests or entitlement in the chose in action, being the application for payment of legal costs, pending before the Victorian Civil and Administrative Tribunal in the same proceedings.

And take notice that you are directed to pay all monies under the Award, or order pursuant to any determination of such costs, to Ewan Carkeek.

(Notice of Assignment)

1. On 15 August 2019, Registrar Condi of the Supreme Court of Victoria assessed the costs of the Original Applicants in the VCAT Proceeding in the amount of $45,559.25 (August 2019 Judgment Debt).
2. In or around January 2019, the Respondent commenced proceedings in the Supreme Court of Victoria seeking leave to appeal the VCAT decision (VCAT Leave Application).
3. On 22 June 2020, Richards J dismissed the VCAT Leave Application and ordered the Respondent to pay the Original Applicants' costs on a standard basis.[3]
4. On 20 October 2020, Registrar Walton of the Supreme Court of Victoria assessed the Original Applicants' costs of the leave application in the amount of $108,950.00 (October 2020 Judgment Debt).
5. On 3 March 2023, the Court of Appeal dismissed the Respondent's application for leave to appeal from the orders of Richards J made on 22 June 2020 and ordered that the Respondent pay the Applicants' costs of the extension of time application on a standard basis.

1. On 1 August 2024, the Original Applicants served a bankruptcy notice (Bankruptcy Notice) on the Respondent in reliance on the October 2020 Judgment Debt.
2. On 22 August 2024, the Respondent did not comply with the requirements of the Bankruptcy Notice served on him on 1 August 2024.
3. On 14 November 2024, the Original Applicants presented a Creditors' Petition against the Respondent seeking a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (Act). In the Creditors' Petition, the Original Applicants alleged:
   1. The respondent debtor owes the applicant creditors the amount of $108,950.00 plus interest pursuant to the orders made in Supreme Court of Victoria Proceeding S ECI 2020 02931 on 20 October 2020.
   2. The applicant creditors do not hold security over the property of the respondent debtor.
   3. At the time when the act of bankruptcy was committed, the respondent debtor was personally present in Australia.
   4. The following act of bankruptcy was committed by the respondent debtor within 6 months before presentation of this petition:

The respondent debtor failed to comply on or before 22 August 2024 with the requirements of a bankruptcy notice served on him on 1 August 2024 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.

1. On 7 March 2025, the First Applicant became a bankrupt and Paul Allen and Innis Cull became his trustees in bankruptcy (First Applicant's Trustees).
2. On 26 March 2025, the Original Applicants amended the Creditors' Petition.
3. On 29 May 2025, the Dismissal Order was made because the First Applicant had become a bankrupt and a trustee had been appointed to his estate.
4. On 10 July 2025, Registrar Wilson made the Sequestration Order against the estate of the Respondent and ordered that the Applicants' costs fixed in the sum of $7,263.58 be paid from the estate of the Respondent in accordance with the Act.
5. On 10 July 2025, the Respondent filed the Review Application.
6. On 20 October 2025, I heard the application for review.
7. I reserved my judgment and made orders as follows:
   1. Judgment be reserved.
   2. On or before 5:00pm on 21 October 2025, the applicants file and serve further submissions that they seek to rely upon, of no more than 2 pages in length, in respect of the effect of bankruptcy on the proceedings.
   3. On or before 5:00pm on 25 October 2025, the respondent file and serve further submissions in reply that he seeks to rely upon, of no more than 2 pages in length, in respect of the effect of bankruptcy on the proceedings.
8. On 21 October 2025, the Remaining Applicants filed further written submissions in which they sought, in effect, leave to re-open the proceeding so that they could join the First Applicant's Trustees as an applicant (Re-Opening Application).
9. On 31 October 2025, I listed the matter for hearing in respect of the following:

(a) any application(s) sought to be made by the Second and Third Applicants, including the apparent application to re-open their case.

1. On 6 November 2025, I heard the Remaining Applicants' application for leave to re-open (Re-Opening Hearing).
2. I reserved my judgment and made orders as follows:
   1. Judgment be reserved on the application to re-open the matter.
   2. Liberty be reserved for the applicants to apply in respect of any application to extend the life of the creditor's petition.
   3. Liberty be reserved for the respondent to make any application for a stay.

1. The Remaining Applicants have filed and rely on the following evidence:

(a) the affidavit of service of Bankruptcy Notice of Daniel Lawrie sworn 16 August 2024;[4]

(b) the affidavit of service of Creditors' Petition of Jack Benjamin Rennex affirmed 16 April 2025 (Rennex Affidavit);[5]

(c) the affidavit of Lorraine Kathleen Carkeek sworn 3 July 2025;[6]

(d) the affidavit of debt of Lorraine Kathleen Carkeek sworn 17 October 2025;[7]

(e) the affidavit of search of Riley Phillip Bouveng affirmed 17 October 2025;[8] and

(f) the affidavit of Nicholas McKenzie-McHarg sworn 5 November 2025 (McKenzie-McHarg Affidavit).

1. The Respondent relies on the following evidence:

(a) the affidavit of Lorraine Kathleen Carkeek sworn 3 July 2025;[9]

(b) the affidavit of Mark Paul Weber affirmed 28 May 2025;[10]

(c) the affidavit of Mark Paul Weber affirmed 4 June 2025;[11]

(d) the affidavit of Mark Paul Weber affirmed 9 July 2025;[12]

(e) the affidavit of Mark Paul Weber affirmed 17 July 2025;[13]

(f) the affidavit of Mark Paul Weber affirmed 24 July 2025;[14]

(g) the affidavit of Mark Paul Weber affirmed 19 October 2025;[15] and

(h) the affidavit of Mark Paul Weber affirmed 17 October 2025.[16]

1. The Remaining Creditors filed the following submissions:

(a) outline of submissions dated 3 July 2025;

(b) outline of submissions dated 23 July 2025 (Remaining Applicants' Submission);

(c) supplementary submissions dated 21 October 2025 (Remaining Applicants' Supplementary Submissions);

(d) further outline of submissions dated 24 October 2025; and

(e) further outline of submissions dated 5 November 2025.

1. The Remaining Applicants' solicitor made oral submissions supplementing their written submissions at the Hearing and the Leave Hearing.
2. The Respondent filed the following submissions:

(a) outline of submissions dated 17 July 2025 (Respondent's Submission); and

(b) supplementary submissions dated 28 October 2025 (Respondent's Supplementary Submissions).

1. The Respondent made oral submissions supplementing his written submissions at the Hearing and the Leave Hearing.

1. Section 254 of the FCFCOA Act provides for the making of Rules of Court for the delegation of any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate which includes a Senior Registrar or a Registrar.
2. Rule 2.02 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankruptcy Rules) provides that for the purposes of s 254(2)(1) of the FCFCOA Act, the powers of the court referred to in Part 1 and Part 2 of Schedule 1 are prescribed. Item 10 of Part 1 of Schedule 1 of the Federal Court (Bankruptcy) Rules 2016 provides that s 52(1) of the Act ("Power to make a sequestration order against the estate of a debtor") may be exercised by a Registrar.
3. Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
4. Rule 2.02(3) of the Bankruptcy Rules provides that subject to any contrary direction by the Court of a Judge, an application for review must be made within 21 days after the day on which the power was exercised.
5. Rule 3.08(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[17] in other words, "anew" or "afresh".
6. Section 256(2) of the FCFCOA Act provides that on a review, the court may "make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised". On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[18] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[19]
7. Rule 7.05 of the Bankruptcy Rules provides that an application for review must be served on the trustee at least 7 days before the date fixed for the hearing of the application and the applicant must give notice of the application in accordance with Form B12 to all known creditors at least 7 days before the date fixed for hearing of the application.
8. In Bechara v Bates,[20] the Full Court explained the nature of a review of a registrar's decision, and the process to be followed at the hearing of the review.[21] The Full Court noted that the review was conducted as a hearing de novo of the Creditors' Petition. The hearing (or rehearing) is prosecuted by the creditor, who is the respondent to the application for review. The application for review is a demand that the claim for relief (for a sequestration order) be heard by a judge. The onus is on the creditor to prosecute the petition. Upon proof by the creditor of the matters required by s 52(1) of the Act, the only onus on the debtor/bankrupt is to prove solvency or other sufficient cause under s 52(2) of the Act.

Leave to re-open, to add a party and to adduce further evidence

1. In the Remaining Creditors' Supplementary Submissions, they seek the following:

Consistent with the approach taken in Owen, leave is sought for the joinder of the Trustees. For that purpose, leave is also sought for the filing of evidence for the limited and specific purpose of informing the Court that the Trustees would not oppose such order being made, nor oppose an amendment to the creditor's petition to include the Trustees as co-petitioning creditors.

1. Implicit within this submission are potentially three separate applications:

(a) application for leave to re-open;

(b) application for joinder of a party (First Applicant's Trustees); and

(c) application for leave to adduce further evidence.

1. Consequently, I listed the matter for hearing in respect of the Re-Opening Application.

Whether two of three joint debts can petition

1. A critical question raised by the Re-Opening Application and Ground 1 is whether the Remaining Creditors, who are two of the three creditors named in the October 2020 Judgment Debt, have the right to prosecute the Creditors' Petition without joinder of the First Applicant's Trustees.
2. It has been held that all joint creditors must join in applying for the issue of a bankruptcy notice,[22] and in the presentation of a creditors petition.[23]
3. In Australian Workers' Union v Bowen,[24] (Bowen) Latham CJ stated:

... A judgment creditor can issue a bankruptcy notice only if he is in a position to issue execution - Ex parte Woodall, [1884] UKLawRpKQB 143; (1884) 13 QBD. 479; Ex parte Ide, [1886] UKLawRpKQB 135; (1886) 17 QBD. 755. Only one writ of execution can be issued for the one judgment debt to which joint judgment creditors are entitled, and a bankruptcy notice in the case of such creditors can be effective only when issued by or on behalf of all the judgment creditors. So also a bankruptcy petition must be presented by all the joint judgment creditors - Re Owen, [1884] UKLawRpKQB 85; (1884) 13 QBD. 113; Brickland v Newsome, (1808) 1 Camp. 474; and see Re Tucker, (1895) 73 L.T. 170. The decision in Re Darby, (1904) 22 WN (NSW) 87, that one of a number of joint judgment creditors was entitled to obtain the issue of a bankruptcy notice in the name of all the creditors cannot be supported as against the authorities to which I have referred.

The position, therefore, is that the bankruptcy notice was issued without the authority of two of the judgment creditors, and accordingly was primá facie invalid. The petition was not signed by or by the authority of the two judgment creditors, C. A. Dalton and W. J Miller. Accordingly, the petition was irregular and was primá facie rightly dismissed, upon the ground that it was founded upon an invalid bankruptcy notice, and upon the further ground that all the joint creditors entitled to the judgment debt were not petitioners. Under the wide provisions of Bankruptcy r 172 both of these objections were open to the debtor upon the hearing of the petition.

(Emphasis added)

1. Dixon and Williams JJ, separately noted that a joint creditor who is unwilling to join in the presentation of a bankruptcy petition after being offered an indemnity against costs could be made a respondent to the petition.
2. In Barranbali Pty Ltd v Pioneer Australia Pty Ltd,[25] (Barranbali) Greenwood J, after referring to authorities including Bowen, stated:

The common law conception of the limitations upon a joint judgment creditor issuing execution processes without doing so on behalf of all of the joint judgment creditors relevantly parties to the judgment or order, or seeking to issue a bankruptcy notice or present a creditor's petition without the consent or authority of all of the joint judgment creditors, are all concerned with an entitlement (or otherwise) to take a step or make an application anterior to the debtor becoming bankrupt (either because a sequestration order has been made or the debtor has presented a debtor's petition, with the bankruptcy commencing in each case as determined by s 115 of the Act).

(Emphasis added)

1. The Law of Assignment[26] contains a useful explanation of the forms of concurrent ownership:

Forms of concurrent ownership

Concurrent ownership can take one of two forms: the 'joint tenancy' or the 'tenancy in common'. The term 'tenancy' in fact adds nothing; the word 'ownership' would provide greater clarity, but the use of the term 'tenancy' is entrenched. The essence of joint tenancy is that each joint tenant is entitled to the whole of the interest which is the subject of co-ownership. In other words, no joint tenant holds any specific or distinct share in the property; rather, each joint tenant (together with the other joint tenant or tenants) is invested with the totality of the co-owned interest. The distinguishing feature of joint ownership is survivorship (ius accrescendi): when one joint owner dies, the property is owned by the surviving joint owners, and the estate of the deceased joint owner gets nothing. By contrast, a tenancy in common is a form of co-ownership in which the co-owners hold distinct shares. In other words, it can be said that A holds three-quarters of the thing, whereas B holds one-quarter. Such a division is impossible in the case of a joint tenancy. The sharing of a single thing in defined proportions is the essence of a tenancy in common - and gives rise to the phrase that tenants in common hold a thing in 'undivided shares'.

(Emphasis in original) (Footnotes omitted)

1. The authors make the following comments concerning a partial assignment of a chose in action which is not divisible into smaller units that are not legally recognised:

Analysis in the context of assignment

As Tolhurst notes, '[g]enerally it is not possible to divide up a single right and then separately assign the parts. A debt is often described as being indivisible so that an assignment by way of division of a debt is not possible. If it were possible to break up that debt the result would be to create two debts which would increase the legal burden of the debtor'. Thus, where there is a 'partial assignment' of a chose in action which is not divisible into small units that are legally recognized, the chose in action is not divided but co-owned. Take, for example, a debt, where A purports to assign to B £90 of the £100 that is owed to A by C. By this transaction, there is not created two separate and distinct rights of action against C, whereby A can claim £10 and B can separately claim £90. There remains a single chose in action - the debt - and the real question is whether A and B are (i) co-owners at law only, (ii) co-owners at law and in equity or (iii) co-owners only in equity. The first case (i) involves a change in ownership of an existing chose in action (from the ownership of A to the co-ownership of A and B); the third case (iii) does not involve any change in the ownership of an existing chose in action, but rather the creation of new equitable interests in the chose. Case (ii) involves both a change in the ownership of an existing chose in action, and the creation of new equitable interests in the chose.

(Emphasis in original) (Footnotes omitted)

1. The authors note that there is a "dearth" of authority concerning concurrent ownership of intangibles, and note that Smith[27] asserts that it has long been the position that there cannot be a legal tenancy in common over choses in action, and that the only form of legal co-ownership is joint tenancy, citing Re McKerrell.[28]
2. In De Lorenzo v De Lorenzo,[29] Leeming JA discussed the question of whether there could be a legal tenancy in common of a chose in action in the context of a decision concerning the interpretation of a will:

There are strongly worded statements in legal literature that there cannot be a legal tenancy in common of a chose in action. For example, Halsbury's Laws of Australia states that "[a]t law choses in action can only ever be the subject of joint ownership, but in equity both types of co-ownership are available": Vol 19, "Personal Property", para [315-300]. Interestingly, Halsbury's Laws of England is more circumspect: "As regards choses (or things) in action, it would, however, seem that ownership in common can ordinarily exist only in equity": (5th ed 2013), Vol 80, "Personal Property", para 830. Both passages cite Re McKerrell [1912] UKLawRpCh 109; [1912] 2 Ch 648.

Further, one specialised text states: "It has long been the position that there cannot be a legal tenancy in common over choses in action: the only form of legal co-ownership is joint tenancy. This is confirmed by twentieth-century authority and is accepted by virtually everybody": R Smith, Plural Ownership (Oxford University Press, 2005), p 209.

1. Section 187(1) of the Property Law Act 1958 (Vic) (Property Law Act (Vic)) provides that where any chattels belong to persons in undivided shares, the persons interested in a moiety or upwards may apply to the Court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the Court may make such order and give any consequential directions as it thinks fit. It has been suggested that a debt may be a chattel personal.[30] I note for completeness that the terms "things in action" and money are both specifically excluded from Part IV of the Property Law Act (Vic)[31] which makes provision with respect to the sale or partition of co-owned land and goods.
2. Section 62 of the Bankruptcy Act provides that where a bankrupt is a contractor in respect of a contract jointly with another person or other persons, that person or those persons may sue or be sued in respect of the contract without the joinder of the bankrupt. This has no apparent application in the case of a chose in action constituted by a judgment debt.
3. The decision in Bowen proceeded on the basis that an order in favour of a number of persons gave rise to a joint right, and not a joint and several right, as to costs.[32] I can see no reason to treat the October 2020 Judgment Debt any differently. I proceed on the basis that at least prior to the bankruptcy of the First Applicant, the rights conferred on the Original Applicants were joint rights. I address the effect of the bankruptcy on those rights, below.
4. Returning to the facts of the present case, the Bankruptcy Notice was issued on the application of all of the Original Creditors, and the Creditors' Petition was presented by all of the Original Applicants. The present difficulty arises because of the bankruptcy of the First Applicant between the date of presentation of the Creditors' Petition and the date of the Hearing.
5. I begin by considering what effect the bankruptcy of the First Applicant on 7 March 2025 had on his rights under the October 2020 Judgment Debt.

Effect of first applicant's bankruptcy on the Creditors' Petition

1. Upon the bankruptcy of the First Applicant, his property, including any rights he had under the October 2020 Judgment Debt vested in the First Applicant's Trustees pursuant to ss 58 and 116 of the Act. Ordinarily, the vesting of the bankrupt's interest in joint property has the effect of severing the joint tenancy, such that the property is then held by the co-owners as tenants in common.[33]
2. However, the authorities above suggest that there cannot be a legal tenancy in common of a chose in action, such as a debt[34] or judgment debt.[35] Accordingly, the position is that the bankruptcy of the First Applicant meant that the First Applicants' Trustees and the Remaining Creditors held their rights in the October 2020 Judgment Debt in equity for themselves as joint tenants.
3. As the legal right to the October 2020 Judgment Debt was held by the First Applicant's Trustees and the Remaining Creditors jointly, according to Bowen, all three creditors were required to present the Creditors' Petition, and according to Greenwood J's judgment in Barranbali, all three were required to take a step or make an application anterior to the Respondent becoming bankrupt. Where there is an assignment of a chose in action in equity but not in law, the assignor is a necessary party to the proceeding,[36] save in the circumstances described in s 62 of the Act which do not apply here.
4. These conclusions are supported by the decision of Barrett J in Roberts v Wayne Roberts Concrete Constructions Pty Ltd,[37] where his Honour stated:

At common law, co-obligees are thus treated as having a joint interest in the debt with the incident of survivorship. The joint entitlement is susceptible to severance (at least in equity) by destruction of the unity of title, time and interest, as in a case where one of the co-obligees alienates his or her interest. Vesting in the Official Trustee in Bankruptcy by operation of s 58 of the Bankruptcy Act effects such a severance: Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 19 FCR 149; Sistrom v Uhr [1991] FCA 315; (1992) 40 FCR 550 (cases concerning land but equally applicable, in my opinion, to personal property). The effect of severance in a case where two persons hold jointly is to cause the property to be held by them as tenants in common in equal shares. It may be that this is the position in equity only, given the opinion expressed by Joyce J in Re McKerrell; McKerrell v Gowans [1912] UKLawRpCh 109; [1912] 2 Ch 648 that, apart from the Judicature Act, "it is clear that there could not have been a tenancy in common of a legal chose in action".

It must follow that, on the bankruptcy of the plaintiff, the Official Trustee came to be regarded in equity as holding an undivided one half share in the debt owed by the defendant to the plaintiff and W J Roberts, assuming the correctness of the proposition that the debt was originally one to which the plaintiff and W J Roberts were jointly entitled. But there was, in no sense, a partition of the jointly owned debt. In the eyes of the common law, such partition is impossible since a purported assignment of part of a debt is ineffective to enable the assignee to sue for the part assigned (Re Steel Wing Co Ltd [1921] 1 Ch 349), although the character of a debt as a chose in action and therefore a chattel personal (Co Litt 118b) may mean that the court can order division of it under s 36A of the Conveyancing Act 1919. After the plaintiff's bankruptcy, the Official Trustee and W J Roberts were, in equity, together entitled to the whole debt as tenants in common in equal shares. The concurrence of both was then necessary to constitute an acquittance: see Steeds v Steeds [1889] UKLawRpKQB 30; (1889) 22 QBD 537 where Huddeston B and Wills J observed that joint lenders upon mortgage are, in equity, prima facie regarded as tenants in common. Huddeston B and Wills J continued:

Where a mortgage debt has been paid to one of the mortgagees, accordingly, it was held that the land was not discharged, and that the concurrence of the other mortgagees was necessary to make a good title: Matson v Dennis [(1864) 10 Jur (NS) 461]. This is on the ground that the debt is held by the two in common and not jointly, and the principle seems to us equally applicable whether the debt is secured by a mortgage or is merely the subject of a personal contract.

(Where a debt is held jointly, by contrast, payment to one of the joint creditors does constitute discharge: Manzo v 555/255 Pitt St Pty Ltd (1990) 21 NSWLR 1.)

Examination of the impact of Bankruptcy Act provisions following the advent of the plaintiff's bankruptcy on 30 April 2001 must therefore be on the basis that, at that point, W J Roberts and the Official Trustee, as trustee of the plaintiff's bankrupt estate, became entitled to the debt as tenants in common in equal shares, with neither alone capable of suing for recovery of it.

(Emphasis added)

Sections 60(2) and (3) of the Bankruptcy Act

1. Section 60(2) of the Act provides that "An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action".
2. On 29 May 2025, the Dismissal Order was made. I was informed that the bankruptcy of the First Applicant was a matter raised by the Registrar (before the Remaining Creditors had a chance to), and that the parties agreed that the Dismissal Order should be made because of the First Applicant's bankruptcy. There does not appear to have been any consideration given to the operation of s 60(2) of the Act at the time the order was made.
3. The bankruptcy of the First Applicant during the pendency of the Creditors' Petition gives rise to complex questions which do not appear to have been identified or addressed prior to the Hearing before me. I make the following observations to identify some of the issues raised by the facts. For reasons which I shall explain later, I do not need to resolve them.
4. There is a significant threshold question as to how ss 60(2) and (3) of the Act operates in respect of an action founded upon a joint right, where not all of the joint holders of the right have become bankrupt. Section 60 operates with respect to "An action commenced by a person who subsequently becomes a bankrupt". In the case of a joint right, does it affect the whole of the action? As indicated above, all joint creditors are required to present and prosecute a creditors' petition, in the case of an unwilling joint creditor, as respondent.
5. My tentative view is that having regard to the principle in Bowen, ss 60(2) and (3) operate to stay the whole of the proceeding, because, on the authorities set out above, the nature of a joint (legal) chose in action is such that it cannot be divided at law. There is either a stay of the whole of the proceeding, or there is not. I am inclined to the view that s 60(2) of the Act must have some operative effect in the case of the bankruptcy of a joint creditor. Another possibility is that the stay only operates with respect to the action so far as it relates to the bankrupt party[38] - leaving it on foot as against the remaining parties (albeit in a form that cannot be prosecuted because it lacks a necessary party).
6. A similar question arises with respect to both the election and deemed election of the trustee in bankruptcy appointed to the bankrupt party to the action. Can the trustee, being one of the joint creditors, make an election to continue the proceeding? In the usual case, joint rights are required to be exercised jointly. For example, in McCowan v Stern[39] McLelland J held "that a joint right to rescind must be exercised if at all by both holders of that right".
7. However, the present case concerns a statutory regime which provides for both election by the trustee in bankruptcy of a party to an action, or deemed election, if the trustee does not make an election. Presumably the trustee could, as one of the joint rights holders elect to continue the action, at least with consent of the other joint creditors. On the other hand, it is less clear that the trustee could unilaterally elect to abandon the action without the agreement of the other joint creditors.
8. In Barranbali,[40]the Full Court considered the question of whether one of two joint creditors had the right to apply for orders under ss 90-15 and 90-20 of the Insolvency Practice Schedule (Bankruptcy). In holding that the joint creditor did have such a right, the Full Court approached the question as one of statutory construction, thereby distinguishing Bowen.
9. Perry and Anastassiou JJ[41] stated:

To allow a joint creditor to act independently in seeking an order under s 90-15 of the Insolvency Practice Schedule is not antithetical to the common law recognition that the underlying chose of action is a single obligation owed jointly and not severally. Allowing an independent application for the removal of a trustee would not lead to the mischief complained of by the Appellant; namely, of "creditor" having a different operation or meaning depending on where it appears in the Act. Indeed, the meaning of the word "creditor" remains uniform and consistent throughout the Act, it is merely that the rights of a single joint creditor in relation to the administration of the bankrupt's estate vary depending on the nature of the obligation.

Further, we do not accept the Appellants' submission that allowing a single joint creditor to apply to remove and replace a trustee creates a conflict between the rights of a joint creditor and a single creditor recognised by the common law, and the meaning of "creditor" in the Act. A single joint creditor is aptly described as, and falls within, the meaning of "creditor" in s 5-30 of the Insolvency Practice Schedule, notwithstanding that for the purpose of recovering a debt such creditors must act jointly.

1. One possibility in the present case is that the stay an abandonment is limited to the action in so far as it concerns the trustee,[42] leaving the action on foot as brought by the other creditors (albeit in a form that cannot be prosecuted because it lacks a necessary party).
2. However, I do not favour such an interpretation. While Barranbali concerned interpretation of the word "creditor" in a particular statutory context, the issue in the present case concerns the interpretation of the phrase "An action commenced by a person who subsequently becomes a bankrupt". I am only concerned with only one action, namely the Creditors' Petition that was presented jointly. It is difficult to see how s 60(3) of the Act could operate other than to stay the whole of the proceeding.
3. A further difficulty arises in the present case because the purported "notice of action" was served by the Remaining Creditors, who are two of the three joint holders of the chose in action. Does s 60(3) of the Act permit them to do so, noting that ordinarily joint rights must be exercised jointly?[43] Once again, I am concerned with the exercise of a statutory right. Section 60(3) refers to the ability for notice to be served by the respondent "or other party to the action". It is arguable that the Remaining Creditors had the (statutory) right to serve the requisite notice in the present case without the involvement of the First Applicant's Bankruptcy Trustees because each of them is a party to the action.[44]
4. I turn then to the question of how these principles might operate in the present case.
5. Upon the First Applicant becoming a bankrupt, any action commenced by him was stayed until the First Applicant's Trustees made a written election to prosecute or discontinue the action. The right to prosecute the Creditors' Petition was a right jointly held by the First Applicant with the Remaining Creditors. If the bankruptcy of the First Applicant effected a severance of the joint tenancy of the Applicants in the October 2020 Judgment Debt in equity, but not at law, then it is arguable that the bankruptcy of the First Applicant triggered the statutory stay under s 60(2) of the Act, because the First Applicant was one of three creditors whose authority and participation was required to prosecute the Creditors' Petition.
6. The bankruptcy of the First Applicant meant that it was arguably not competent for the Remaining Creditors to continue to prosecute it, including by seeking amendment of it on 27 March 2025, by service of it on 16 April 2025, by seeking the Dismissal Order on 29 May 2025, by seeking adjournment of it on 29 May 2025, or by seeking a sequestration order on 10 July 2025; either because the proceeding was subject to the statutory stay, or because the orders were sought without a necessary party.
7. Given that the Dismissal Order and the Sequestration Order were each made by a Registrar exercising delegated power of the Federal Circuit and Family Court of Australia (Division 2), if those orders were irregular, or in breach of a statutory stay, a nice question arises as to what effect, if any, they had. Would such a defect be a "formal defect or irregularity" that could be cured by s 306 of the Act, or one that invalidates the proceedings?[45]
8. The Remaining Creditors contend that the correspondence sent to the First Applicant's Trustees on 26 May 2025 was a notice of the action for the purposes of s 60(3) of the Act, such as to trigger the 28 day period within which the First Applicant's Trustees were required to make an election to prosecute or discontinue the Creditors' Petition. As indicated above, there is some uncertainty as to whether two joint holders of a right, can serve notice on the First Respondent's Trustees, who in this case, also happen to be the other joint holders of the right.
9. There is a greater difficulty with this contention. More than "mere provision of the details of the action" is required to satisfy the requirement for notice in s 60(3).[46] For example, "lodgment of proof of debt is not 'notice of the action' as required by s 60(3)".[47] The "notice" should have direct reference to "the action". Section 60(3) requires "that the notice contain sufficient information to draw the trustee's attention to the fact that time will run against the trustee upon service of the notice".[48]
10. These considerations suggest that the 26 May 2025 correspondence that is relied upon by the Remaining Creditors as "notice of the action" for the purpose of s 60(3) of the Act was not sufficient notice. While the correspondence annexed the Creditors' Petition and supporting documents, it did not contain sufficient information to inform that First Applicant's Trustees that time would run against them upon service of the notice.
11. I have sought to explore the difficult questions that arise in the present case without answering them, because, for reasons set out below, it is unnecessary for me to do so. It is sufficient to say that these matters have not been addressed by either party in writing, and only in cursory manner in oral submissions. This circumstance is relevant to the exercise of the discretion to grant leave to the Remaining Applicants to re-open their case.

1. Rule 1.04(2) of the Bankruptcy Rules provides that the other Rules of the Court apply, to the extent that they are relevant and not inconsistent with the Bankruptcy Rules, to a proceeding in the Court to which the Bankruptcy Act applies.
2. Given the hearing before me is conducted de novo, if the other Rules of Court are to be applied, the applicable rules would be the 2025 GFL Rules.
3. Rule 9.03 of the 2025 GFL Rules[49] provides that if an applicant claims relief to which any other person is entitled jointly with the applicant, each person so entitled must be joined as a party to the proceeding, and any person so entitled who does not consent to being joined as an applicant must be made a respondent to the proceeding.
4. Rule 9.07 of the 2025 GFL Rules provides that the Court may decide a proceeding even if a person who should have been joined as a proper or necessary party has not been joined.
5. The Bankruptcy Rules make no provision of the type found in 9.07 of the 2025 GFL Rules. Rule 9.07, would, subject to the question of its interpretation, appear to have relevance and would appear to be not inconsistent with the Bankruptcy Rules.
6. In Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6),[50] (Mineralogy) Edelman J stated, in relation to r 9.07 of the Federal Court Rules 2011 (Cth) (which is the equivalent of r 9.07 of the 2025 GFL Rules):[51]

...Although r 9.07 of the Federal Court Rules 2011 (Cth) provides that a proceeding will not be defeated only because a person who should have been joined as a proper or necessary party has not been joined, this rule has not removed the need for proceedings to be properly constituted: Dowell v Custombuilt Homes Pty Ltd [2004] WASCA 171 at [89] (EM Heenan AJA). Rather, the rule illustrates the discretionary, and pragmatic, decision that must be made in deciding whether to withhold relief when relevant parties are not present.

The decision whether to grant or withhold declaratory relief in the absence of a party was described by Greenwood J in Mentink v Registrar of Australian Register of Ships (2014) 320 ALR 137; [2014] FCA 1138 at [172] (quoting Zamir I and Woolf J, The Declaratory Judgment (4th ed, Sweet & Maxwell, 2011) at [6-16]) as involving an "extremely pragmatic" approach.

Very similar considerations apply in a case where an injunction is sought which would potentially interfere with the rights of parties who are not before the court. As I explain below, the effect on third parties was treated as raising the same issues for both the declaration and the injunction sought in Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119; [1959] ALR 65 (Australasian Oil Exploration).

In the context of an interlocutory injunction, the High Court of Australia has emphasised that court will not ordinarily grant an injunction when it will have "have the effect of very materially injuring the rights of third persons not before the courts". The High Court included within the concept the court's consideration of the interests of the "public generally": Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; 153 ALR 643 ; 27 ACSR 535; [1998] HCA 30 at [65], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ (quoting with approval from Dr Spry).

(Emphasis added)

1. In Dowell v Custombuilt Homes Pty Ltd,[52] (Dowell) Em Heenan J stated:

The provision in the Rules that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party - RSC O 18 r 6(1) has not altered the legal principles with regard to parties to actions and does not remove the need to have all the proper parties necessary for determining the point at issue before the court: Kendall v Hamilton (1879) 4 App Cas 504; A G v Pontypridd Water Works Co [1907] UKLawRpCh 168; [1908] 1 Ch 388; Performing Right Society v London Theatre of Varieties [1924] AC 1 and Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119 at 133, so that if the Greens were joint contractors with the respondent, rather than several or joint and several contractors, their absence from these proceedings would be a formidable difficulty. However, as it seems to be clear, beyond any doubt, that the interests, rights and obligations of the Greens under this "agreement" if it was (contrary to the finding of the learned trial Judge) complete were interests, rights and obligations which were separate and distinct from those of the respondent, Custombuilt Homes Pty Ltd. Indeed, this emerges from the analysis already set out. In that case, despite their absence from the proceedings, it is possible to deal with the matter with regards to the rights of the parties actually before the court. This is the course which should be preferred, if at all possible, where, as here, the action has proceeded to trial without objection as to parties: Re Harrison [1891] UKLawRpCh 30; [1891] 2 Ch 349 and Hall v Heward [1886] UKLawRpCh 120; [1886] 32 Ch D 430. Whether this is, indeed, possible especially in the light of the cross-appeal is a matter which will require further attention.

(Emphasis added)

1. As indicated earlier, the Creditors' Petition in so far as it related to the First Applicant was "dismissed" - which may mean to have been intended to remove the First Applicant as a party, because the appointment of the First Applicant's Trustees meant that he ceased to have an interest in the subject matter of the proceeding. No application was made at that time to substitute the First Applicant's Trustees as either an applicant or to join them as a respondent.
2. Consistently with Mineralogy and Dowell, r 9.07 of the 2025 GFL Rules does not overcome the need for the Creditors' Petition proceeding to be properly constituted. Here, the Creditors' Petition is not properly constituted because it does not include one of three joint creditors as petitioning creditor. Therefore, r 9.07 has no relevance and is not picked up and applied by r 1.04(2) of the Bankruptcy Rules.

1. I turn to consider when the issue that the Remaining Applicants now seek to address was first raised as well as their response to the issue, when raised. Consideration of this question begins no earlier than 7 March 2025, when the First Applicant became a bankrupt.
2. The Remaining Applicants accept that I should infer that they became aware of the bankruptcy in early March 2025.
3. On 12 March 2025, the Applicants purported to file an application seeking, amongst other things, a new hearing date, and the amendment of the Creditors' Petition, to reflect the new hearing date.
4. On 27 March 2025 (20 days after the First Applicant became a bankrupt), the Creditors' Petition was amended to reflect the new hearing date of 29 May 2025.
5. On 15 April 2025, the Applicants purported to serve the amended Creditors' Petition together with supporting documents pursuant to an order for substituted service.[53]
6. On 26 May 2025, the Remaining Applicants wrote to the First Applicant's Trustees informing them of the proceeding, seeking consent to act on behalf of them in the proceeding and providing them with court documents filed in the proceeding.[54] There was no response to that correspondence.
7. On 28 May 2025, Lorraine Kathleen Carkeek swore an affidavit deposing the following:
   1. I am one of the Applicant Creditors.
   2. I am duly authorised to swear this affidavit on behalf of the Applicant Creditors.
   3. Allison Dorathea Carkeek and Ewan Aubrey Carkeek have each informed me and I verily believe that each debt on which the Applicant Creditors rely is still owing.
8. On 29 May 2025, Registrar Ellis made the Dismissal Order.
9. On 4 June 2025, the Respondent filed a "Notice stating grounds of opposition to application, interim application or petition" which provided, amongst other things:

The applicants, Lorraine Kathleen Carkeek and Allison Dorathea Carkeek, have no legal basis to make application for a creditors petition as against the respondent.

1. The affidavit filed at that time had no reference to the bankruptcy of the First Applicant.[55]
2. On 3 July 2025, the Remaining Applicants filed an outline of submissions which did not address the effect of the bankruptcy of the First Applicant or their right to prosecute the Creditors' Petition, and sought a Sequestration Order.
3. On 9 July 2025, Lorraine Kathleen Carkeek swore an affidavit deposing that:
   1. I am one of the Applicant Creditors.
   2. I am duly authorised to swear this affidavit on behalf of the Applicant Creditors.
   3. Allison Dorathea Carkeek and Ewan Aubrey Carkeek have each informed me and I verily believe that each debt on which the Applicant Creditors rely is still owing.
4. On 9 July 2025, Riley Bouven, solicitor for the Remaining Creditors, swore an affidavit "to depose to the outstanding debt owed by the Respondent to the Applicants, and to supplement the affidavit of debt sworn by Lorraine Kathleen Carkeek on 9 July 2025". The affidavit included the following statements:

(a) "On 7 March 2025, Mr Paul Anthony Allen was appointed the Trustee in Bankruptcy of Ewan Aubrey Carkeek"; and

(b) "On 9 July 2025 at 10.53am, Paul Allen sent me an email by which he confirmed that he had not received any payment from Mr Weber from the commencement of Mr Carkeek's bankruptcy".

1. On 9 July 2025, the Respondent affirmed an affidavit in which he deposed:

Background

1. On the return date of 29 May 2025, I was notified by the Court, the first applicant had been dismissed. On further enquiry I discovered he had been made bankrupt.

2. The applicants took issue that I had not filed a notice of appearance of notice of objection, yet failed to follow procedure in having Mr Carkeek removed from the application.

3. The applicants failed to make application under rule 3.05 of the FCAFCA rules.

4. The Court did not seek to have the applicants file the appropriate application and supporting affidavits under rule 3.05 of the FCAFCA rules.

5. I was blindsided (akin to its close cousin, hijacked) in only being told at the hearing that Mr Carkeek had been discontinued.

6. This prejudiced my position as the respondent in these proceedings because it fundamentally changed the entire matter to be defended.

7. On the latest return date, orders were made, and provided the applicants to file any affidavits and written submissions. The Court did not make orders that allowed me an opportunity to respond.

...

1. I say the applicants deliberately failed to make application to have Mr Carkeek removed from these proceedings under rule 3.05 of the FCAFCA rules prior to the hearing date, so as to take advantage of me being a self-represented party and to not properly and with advance notice advise me that he was no longer an applicant. This gave me no opportunity to provide a defence on the amended parties to the application.

2. I respectfully say and submit, the Court denied me procedural fairness in allowing the applicants to not comply with rule 3.05 of the FCAFCA rules.

...

1. The applicants made application for a creditors petition dated 27 March 2025

2. On 7 March 2025, Ewan Carkeek was declared bankrupt by sequestration orders of this Court

3. The applicants knew that Ewan Carkeek had been declared bankrupt, prior to the Creditors Petition being filed. The Creditors Petition is defective as to failed to disclose that Ewan Carkeek was in Bankruptcy. Further that no document was provided by the Trustee of Ewan Carkeek's bankruptcy Estate, had granted permission for him to be an applicant in these proceedings

4. Given the orders of the VCAT made 7 December 2018, no orders were made in respect of Allison Carkeek. The orders made in respect of monies owed by me and to be paid to the applicants (in these proceedings) was on an equal division between Ewan Carkeek and Lorraine Carkeek.

5. It follows that the entitlement to the amount declared both in the Bankruptcy notice and the Creditors Petition to Ewan Carkeek and Lorraine Carkeek, at best is on a 50% basis each.

6. Taken at its highest, the 50% portion attributable to Ewan Carkeek, cannot be persecuted in this matter as that amount now becomes and belongs to the Nominated Trustee of his Bankruptcy estate.

7. I therefore say that Lorrane Carkeek is only entitled to 50% of the amount claimed in the Creditors Petition.

8. However because the applicants failed to notify the Court or for that matter myself up to and including the hearing date of XXX that Mr Carkeek had been declared backrupt, I did and had a counter offset amount in excess of the amount claimed in the Creditors Petition.

9. At the time of the hearing on 28 May 2025, I say the applicants were claiming an amount that was incorrect, false and made deliberately, knowing it was false.

10. At this juncture, I say that I have not been properly notified of the amount the applicants say is owing, given the circumstance regarding the applicant Ewan Carkeek being dismissed from these proceedings.

11. I also say the applicants at all material times knew of the cumulative effect of Ewan Carkeek being declared bankrupt on 7 March 2025, yet failed to notify me or the Courts until the hearing date of 28 May 2025. In other words, I say the applicants failed to disclose this knowledge in order to advance a narrative that benefited them, without full disclosure to ensure procedural fairness was entertained.

12. I say that because the applicants have failed to notify me of the legitimate amount they claim is owing, they have failed to give me any opportunity to meet those demands.

(Words as written)

1. On 10 July 2025, the Creditors' Petition was heard by Registrar Wilson:

(a) the Respondent made oral submissions in which he sought to agitate the question of whether the Remaining Creditors could prosecute the petition in circumstances where the First Applicant had, himself, become a bankrupt. He contended that:

(i) "a portion of the amount now is such that is owed to the trustee";

(ii) "the applicants were clearly aware that the bankruptcy of Mr Carkeek would fundamentally change the amount that the creditors could claim... They have never sought to amend the amount"; and

(iii) an affidavit of Allison Carkeek was false: "she actually states that Ewan Carkeek is still entitled to [the debt], as if he was an applicant in these proceedings, which is totally wrong".

(b) the solicitor for the Applicant made oral submissions that did not address the effect of bankruptcy on the Remaining Respondents ability to prosecute the Creditors' Petition; and

(c) a sequestration order was made.

1. On 10 July 2025, the Respondent lodged his application for review of the sequestration order.
2. On 17 July 2025, the Respondent lodged an outline of submissions.in which he made various submissions concerning the effect of bankruptcy on the proceedings including:

Submission for the rehearing

11.The Respondent contends that once the First Applicant Ewan Carkeek was dismissed from these proceedings, the portion of that debt said to be owed to Ewan Carkeek became the property of Ewan Carkeek's Bankruptcy Trustee.

12.The Respondent contends the second and third Applicants were not entitled to the portion owed to Ewan Carkeek and therefore the amount claimed in the creditors petition was invalidated by the act of Ewan Carkeek being dismissed from these proceedings.

13.In the alternative, the second and third Applicants did not seek to alter, amend or reverify the creditors petition based on the premise Ewan Carkeek had been dismissed as an Applicant, and the Respondent submits, this invalidated the creditors petition and therefore must be dismissed

...

18. It is submitted the Court requires proof of the fact that the debt on which the petitioning creditors relies is or is still owing and that it must be satisfied before making a sequestration order. In all the circumstances the Respondent submits the Court cannot be satisfied the requisite standard for the making of the sequestration order has been reached, and in fact in part turns on the fact Ewan Carkeek the first Applicant is no longer part of these proceedings.

19.Where the Court is not satisfied with the proof or is satisfied by the debtor that for other sufficient cause a sequestration order not to be made, the Court may dismiss the petition.

...

28. It is submitted the Applicants creditor's petition must be dismissed as it fails to satisfy s52 of the Bankruptcy Act 1966, notwithstanding Mr Bouveng representing the Applicants has participated in egregious conduct that cannot and should not be accepted in this Honourable Court

(Words as written)

1. On 23 July 2025, the Remaining Applicants filed an outline of submissions which did not address the effect of bankruptcy on their rights to prosecute the Creditors' Petition.
2. On 20 October 2025, I heard the application for review. During the Hearing, I raised the question as to the effect of bankruptcy on the right of the Remaining Creditors to prosecute the Creditors' Petition and referred the parties to the decision in Bowen. I granted leave to the parties to address that question in a supplementary written submission.
3. On 21 October 2025, the Remaining Applicants sent further correspondence to the First Applicant's Trustees enclosing the Creditors' Petition, informing them of the necessity of joinder, and offering an indemnity for reasonable costs incurred in connection with joinder or prosecution of the Creditors' Petition.[56]
4. After initially seeking money to obtain advice, the First Applicant's Trustees advised that they would not oppose joinder and amendment to include them as co-petitioning creditors.[57]
5. In the Remaining Creditors' Supplementary Submission, the Remaining Creditors sought leave to re-open the hearing in order to join the First Applicant's Bankruptcy Trustees as applicants.

1. The court has a discretion to permit a party to re-open their case, even after it has been closed and judgment reserved. The discretion must be exercised judicially.
2. "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be".[58]
3. While the categories are not closed,[59] four categories have been recognised:

(a) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

(b) where there has been an inadvertent error;

(c) where there has been some mistaken apprehension of facts; and

(d) where there has been some mistaken apprehension of law.

1. In Spotlight Pty Ltd v NCON Australia Ltd,[60] the Victorian Court of Appeal explained public policy consideration that militates against allowance of applications to re-open as a matter of course:

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the re-opened issues would be hard to define and as difficult to protect. The re-opened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the re-opening to polish parts of its case which were more or less within the scope of the re-opened proceeding but not clearly on one side or the other of the prescribed limits.

(Emphasis added) (Footnotes omitted)

1. In Bradshaw,[61] Kenny J refused leave to the applicant to re-open their case. Her Honour noted that the applicants had "from the commencement of the proceeding ... determined to carry their case without seeking to quantify their loss". The applicant then sought to re-open the case for the purpose of pursuing the question of quantification which they had originally "spurned".[62]
2. Section 33(1)(b) of the Act provides that the Court may "at any time allow the amendment of any written process, proceeding or notice under this Act". The power of amendment under s 33(1)(b) extends to authorising amendments that would cure omissions of matters made mandatory by the Bankruptcy Act or Bankruptcy Rules, i.e. to cure defects that go beyond "formal defects or irregularities" within the meaning of s 306 of the Act.[63]
3. There is authority for the proposition that a creditors' petition that is amended pursuant to s 33 of the Act would not be subject to a requirement of re-verification.[64] Hence, it may not be necessary for the Remaining Applicants to adduce any further evidence for the purpose of a final hearing. At most, the McKenzie-McHarg Affidavit is necessary to demonstrate the assent and authorisation of the First Applicant's Trustees.
4. Historically, it has been held that a review of a registrar's decision must be by way of hearing de novo, which included the right to adduce new evidence.[65] While 3.08(2)(b) of the 2025 GFL Rules includes a leave requirement, it is doubtful that it applies to a review of an order made under the Act.[66]
5. I turn then to the exercise of discretion to permit the Remaining Applicants to re-open their case so as to join the First Applicant's Trustees as applicant.
6. There are a number of matters militating in favour of granting the Remaining Applicants leave to re-open their case:

(a) first, granting leave to re-open would not substantially alter the nature of the claim against the Respondent - noting that some of the Respondent's submissions proceed from a misunderstanding of the nature of the First Applicant's Trustees rights under the 2020 Judgment Debt and the effective bankruptcy on those rights;

(b) second, granting leave to re-open ought not to create scope for substantial factual disputes - in circumstances where the debt the subject of the Creditors' Petition is a judgment debt, and the vesting of the First Applicant's rights in the debt occurred by operation of law;

(c) third, the further evidence required to be adduced on the Creditors' Petition (as opposed to the Re-Opening Application itself), is limited, and possibly unnecessary;

(d) fourth, bankruptcy proceedings are taken for the benefit of creditors generally, and not just the Remaining Creditors - although no other creditors have been identified here;[67] and

(e) fifth, joinder might have the collateral benefit of assisting the First Applicant's Trustees in administering the bankrupt estate of the First Applicant.

1. Despite these matters, I am not persuaded that it is in the interests of justice to grant the Remaining Applicants leave to re-open their case. The matters that I rely on in reaching that conclusion are as follows:

(a) first, the Re-Opening Application was made late in the proceedings, after the Remaining Applicants closed their case and judgment was reserved;[68]

(b) second, the Remaining Applicants have been on notice of the Respondent's contention that the bankruptcy affected their right to prosecute the Creditors' Petition for some time, [69] but they have not confronted the substance of the problem that was consistently agitated by the Respondent until after reservation of judgment;

(c) third, the Respondent has cause for complaint as to the manner in which the issue of the First Applicant's bankruptcy was addressed in the proceeding, including that between 12 March 2025 and 29 May 2025, the Applicants took steps to prosecute the Creditors' Petition without addressing the issue of the bankruptcy;

(d) fourth, I note the significant uncertainties that I have identified above, arising from the bankruptcy of the First Applicant, the Dismissal Order and ss 60(2) and (3) of the Act, that have not been fully explored in the parties' submissions;

(e) fifth, there are public interest factors which militate against the grant of leave including promotion of inefficiency in the conduct of litigation,[70] erosion of the principle of finality in litigation[71] and need to maintain public confidence in the judicial system;[72]

(f) sixth, there is a public interest in the prompt hearing of applications for review of the exercise of delegated power by Registrars.

In Bechara v Bates,[73] the Full Court stated:

Applications for review of exercises of delegated power by registrars should be reheard by judges de novo as soon as reasonably practicable. This is especially so in bankruptcy, and even more so if it is a review of a sequestration order that changes the status of a debtor, enlivens powers of a trustee and brings about changes to property. Delay is not only prejudicial to the debtor or bankrupt, but also to the creditor and potentially to members of the public.

In Griffiths v Boral Resources (Qld) Pty Ltd,[74] the Full Court noted the:

importance of the policy, evidenced in both the Corporations Act and the Bankruptcy Act, that insolvency proceedings be speedily resolved, presumably for commercial reasons and for reasons of fairness. Courts exercising jurisdiction in insolvency must recognise this policy by giving priority to the hearing and determination of such matters. The parties and their legal advisers, particularly those advising petitioning creditors, must be aware of the potential problem.

(g) seventh, the issue of joinder of the First Applicant's New Trustees has been raised after almost 12 months has elapsed since the Creditors' Petition was presented, which is the usual life of a creditors' petition, unless extended.[75] While the petition is no longer liable to lapse at the end of that period because a sequestration order has already been made,[76] the period provides a yardstick against which delay can be measured;[77]

(h) eighth, "innocent misapprehension of the law"[78] is not a completely satisfactory explanation for the present application - particularly when the substance of the issue has been agitated by the Respondent since the bankruptcy of the First Applicant; and

(i) ninth, it cannot be assumed that the joinder of the First Applicant's Trustee would not necessitate further evidence or hearing - procedural fairness would dictate that the Respondent be given an opportunity to file amended grounds (as he has requested) and an opportunity to explore the question of cross examination.[79] It may be that the issues raised by joinder are such that no new grounds are raised and there is no need for cross examination, but such possibility cannot be excluded. I place significant weight on this consideration, noting that granting leave will inevitably lead to further delay in the context of a creditors' petition that was presented around 12 months ago.

1. I refuse the Remaining Applicant's Re-Opening Application.

1. Section 52(1) of the Act provides further that if it is satisfied with the proof of the following matters, the court may make a sequestration order against the estate of the debtor:

(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b) service of the petition; and

(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing.

1. Subject to the matters raised by the Grounds of Opposition, that I address below, I am satisfied with the formal proofs required by s 52(1) of the Act.[80] I am also satisfied that the Respondent has served the Review Application on his trustee[81] in bankruptcy and creditors[82] in accordance rr 7.05(2) and (3) of the Bankruptcy Rules and the Remaining Creditors have complied with r 4.06 of the Bankruptcy Rules by filing affidavits of debt[83] and search,[84] noting that the primary purpose of the latter is to ensure that a sequestration order is not made against a person who is not already a bankrupt - a matter that is not relevant to a review of a sequestration order.

Remaining Creditors have no legal basis to prosecute petition

The applicants, Lorraine Kathleen Carkeek and Allison Dorathea Carkeek, have no legal basis to make application for a creditors petition against the respondent.

1. As the legal right to the October 2020 Judgment Debt was held by the First Applicant's Trustees and the Remaining Creditors jointly, according to Bowen, all three creditors were required to present the Creditors' Petition, and according to Barranbali, all three were required to take a step or make an application anterior to the Respondent becoming bankrupt.
2. In the absence of the First Applicant's Trustees as a party to the proceeding, applying Bowen, I am not satisfied that the Remaining Applicants have the right to prosecute the Creditors' Petition. While the Remaining Applicants sought to cure this defect in their Re-Opening Application, I have not allowed that application for the reasons stated above.
3. The absence of the First Applicant's Trustees as a party to the Creditors' Petition is a reason to dismiss it - on the basis that the proceeding is not properly constituted.
4. Ground 1 is upheld.

The applicants, Lorraine Kathleen Carkeek and Allison Dorathea Carkeek assigned all their legal rights to the debt said to be owing by the respondent, to Ewan Aubrey Carkeek (In bankruptcy).

The [Remaining Applicants] having absolutely assigned all their right, tite and interests, both legal and equitable to Ewan Carkeek, have no legal basis in law or in equity to Ewan Carkeek, have no legal basis in law or equity to the Taxation of Costs (the basis for their application) in the amount of $108,950.00.

1. It is convenient to extract the critical aspects of the chronology:

(a) in January 2019, the Respondent filed the VCAT Review Application;

(b) in April 2019, the Original Applicants executed the Deed of assignment;

(c) on 24 April 2019, the Applicants gave notice of the assignment to the Respondent;

(d) on 22 June 2020, Richards J dismissed the VCAT Review Application and ordered the Respondent to pay the Original Applicants' costs on a standard basis;[85] and

(e) on 20 October 2020, Registrar Walton of the Supreme Court of Victoria assessed the Original Applicants' costs of the Review Application in the amount of $108,950.00 (the October 2020 Judgment Debt).

1. For present purposes, no question arises as to the validity of the Notice of Assignment, which would govern the answer to the question of whether the assignment was a legal or equitable one.[86] The critical question concerns the construction of the Deed of Assignment.
2. The Respondent's contention is that as a matter of construction, the Deed of Assignment included assignment of the Remaining Applicants' rights under the October 2020 Judgment Debt, which at the point in time when the deed was executed, had not yet been made.
3. At the date of the Deed of Assignment, the October 2020 Judgment debt was a future chose in action, namely "the prospect or possibility of becoming entitled in the future to a proprietary right".[87] Further, "the order for costs itself is the source of the legal liability and there is no certainty that the court in question will decide to make an order."[88] In other words, the October 2020 Judgment Debt had no legal existence prior to the making of the order. As at the date of the Deed of Assignment, there was no right that the Original Applicants held that was capable of assignment. The "right" to a future costs order in the VCAT Review Proceedings, was no more than an "expectancy". Nevertheless, a specifically enforceable agreement to assign an expectancy is enforceable in equity, upon the coming into existence of the expected right.[89] Accordingly, the resolution of Ground 2 depends on the construction of the Deed, and in particular, whether it was intended to include the future right to a costs order in the VCAT Review Proceedings.
4. The general principles governing the construction of commercial contract have been held to apply to the construction of commercial contracts reduced to a deed.[90] In short "the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose".[91] In interpreting deeds, additional principles of construction apply, particularly in relation to recitals.[92]
5. Turning to the present case, the Deed of Assignment provided:

That on the signing of this Deed, and upon the payment by the Assignor of the sum of $1.00 to the First and Second Assignees (receipt whereof is acknowledged by their respective execution hereof), the First Assignee and the Second Assignee hereby absolutely assign all their legal and equitable interest in or arising under the Award and the Costs Ruling, to the Assignor.

1. The Award was defined in the recitals to mean "an Award made by the Victorian Civil and Administrative Tribunal on 7 December 2018, it was ordered that Mark Paul Weber of [address redacted] pay to The Assignee and the First Assignor, the sum of $84,014.35". The Costs Ruling was defined in the recitals to mean the "order that the said Mark Paul Weber pay their costs of the proceedings, and the Tribunal has reserved that ruling".
2. Having regard to the text of the Deed, its context and purpose, the relevant assignment was limited to the "award" made by VCAT on 7 December 2018 and the costs ruling that resulted in the August 2019 Judgment Debt. I cannot discern any intention of the Original Applicants to assign the benefit of future costs orders in the VCAT Leave Application, noting that such an appeal would, if leave had been granted, be on a question of law.[93] The leave application was distinct from the VCAT Costs Order and the August 2019 Judgment Debt.
3. Accordingly, I am not satisfied that there is any substantial merit in Ground 2.

1. In written submissions, the Respondent also contended that he had been denied procedural fairness by the Registrar (Ground 3).
2. Ground 3 is that the Respondent claimed to have been denied procedural fairness by the Registrar. The denial is said to have occurred because the Registrar did not make orders giving the opportunity for the Respondent to provide "a reply in response" to the Applicant's written submissions. Amongst other complaints, the Respondent contends that the Registrar "prevented the Respondent from making reasonable submissions to the Court".
3. Given that a review of the exercise of power by a registrar is conducted as a hearing de novo, nothing would appear to turn on these matters for the purpose of the review. In particular, the Respondent has had the opportunity at the Hearing before me to make such submissions as he sought to make, including submissions responding to the Remaining Applicants' Submissions and their Further Submissions.
4. I am not satisfied that there is any substantial merit in Ground 3.

1. The Respondent contends that he has an offsetting claim that is greater than the amount claimed against him in the Creditors' Petition.
2. The Respondent contends that the Original Applicants owe him $222,560.04. That debt would appear to be comprised of the following amounts:[94]

(a) principal of $10,000 and interest of $6,448.26 owing under orders made by VCAT against the First Applicant and Second Applicant on 7 December 2018; and

(b) principal of $125,142.42 and interest of $80,969.36 owing under orders made by VCAT against the First Applicant and Second Applicant on 7 December 2018.

1. In Re Schmidt; Ex parte Anglewood Pty Ltd,[95] Gibbs J stated that the role of the court when considering set off as a ground of opposition to a creditor petition was to determine whether "there is sufficient validity in the debtor's claims to justify a dismissal or adjournment of the petition". Given that the debts relied upon by the Respondent are judgement debts, no issue arises as to whether there is sufficient validity in the Respondent's claims.
2. The issue raised here is whether there is requisite mutuality between the debt claimed by the Remaining Creditors (October 2020 Judgment Debt) and the offsetting claim asserted by the Respondent (December 2018 Judgment Debts).
3. A question arises as the nature of the rights and obligations under the December 2018 Judgment Debts and the October 2020 Judgment Debt. Consistently with the principle that liability for payment of a costs order is ordinarily joint and several, I find that the First and Second Applicants' obligations under the December 2018 Judgment Debts were joint and several obligations.[96] On the other hand, and consistently with costs order in Bowen, I consider that the Original Creditors' rights under the October 2020 Judgment Debt were joint, and not joint and several. Those rights continued to be joint rights (at law) following the bankruptcy of the First Applicant.
4. The difficulty here is the obligations on each side of the ledger do not correspond. The only common denominator is that the Respondent, who is on each side of ledger; as a creditor in respect of the December 2018 Judgment Debts and a debtor in respect of the October 2020 Judgment Debts.
5. In Stec v Orfanos,[97] the Full Court of the Federal Court stated:

The primary judge then said that there was a more general answer to all the alleged cross demands. This was that in answer to a bankruptcy notice issued by several joint creditors, the debtor may not raise a debt owed by one or some of them individually. Mr Stec's claims were not against all those described in the notice as "the creditor". His Honour relied on James at 643 and on an earlier decision of his own, Emanuele v Grey (unreported 17 December 1997), which also relied on the passage in James. Where a debtor seeks to set aside a bankruptcy notice on the ground that the debtor has a cross demand which equals or exceeds the amount of the judgment or order on which the bankruptcy notice is founded, the judgment on the one hand and the cross demand on the other must be mutual and due in the same right: Re Anderson; Ex parte Alexander [1927] NSWStRp 35; (1927) 27 SR (NSW) 296; James v Abrahams [1981] FCA 46; (1981) 51 FLR 16 at 27. The requirement that the two claims be "in the same right" is directed to the capacities in which the claimants claim. Thus a claim by a judgment creditor personally cannot be answered by a claim against the creditor as a member of a partnership or as an executor or trustee. See Re Wedd; Ex parte Wedd (1961) 19 ABC 36; Re Molesworth (1907) 51 Sol J 653; Vogwell v Vogwell (1939) 11 ABC 83 at 89. But the requirement relevant to the present case is that the claims be mutual; that is that they be of the same kind or nature. Thus joint debts cannot be set off against several debts: Middleton v Pollock [1875] UKLawRpEq 131; (1875) LR 20 Eq 515 at 518. Here three of Mr Stec's claims were against ERI alone. There is thus no mutuality in relation to these claims. His other claim was against Messrs Conroy, Rybak and Georgopolos. Again there is no mutuality because one of the joint creditors, ERI, is not the subject of the cross claim.

We agree with the primary judge's observations in Emanuele and in the present case that a debtor may only raise as an answer to a bankruptcy notice issued by several joint creditors a cross demand against those creditors jointly. However, we do not think that James provides any authority for this proposition.

(Emphasis added)

1. In the absence of special circumstances, mutuality in beneficial interests is required in all cases.[98] There are no "special circumstances" that arise here.
2. Applying the principles set out in Stec, the Respondent's rights against the (First) and Second Applicants under the December 2018 Judgment Debts cannot be set off against the First Applicant's Trustees and Remaining Creditors rights against the Respondent under the October 2020 Judgment Debt - because the Third Applicant is not a joint debtor under the first set of orders. The same result obtains when considering the question at both law (where the Applicants are joint creditors) or in equity.
3. I am not satisfied that the Respondent's claimed off-setting claim is available.

1. The Respondent contended that as the First Applicant had not listed him as a creditor in his statement of affairs that somehow his debt should be treated as having been written off. I do not accept that the matters recorded (or not recorded) in the First Applicant's statement of affairs are sufficient proof (as against the Remaining Applicants) that debts have been "written off". As the First Applicant was bankrupt at the time when his statement of affairs was filed, he had ceased to have any interest in the October 2020 Judgment Debt. He did not have the legal right to write that debt off, and the matters recorded in his statement of affairs are not admissions as against the Remaining Creditors or his trustee in bankruptcy.
2. I am not satisfied that the First Applicant's failure to list the Respondent as a creditor is a reason not to make a sequestration order.

1. I have determined that the Re-Opening Application ought to refused. I have upheld Ground 1 of the grounds of opposition to the Creditors' Petition. Accordingly, the Creditors' Petition ought to be dismissed on the ground that the Remaining Applicants do not have the right to prosecute in the absence of the First Applicant's Trustees.
2. The orders on the review will be that the Re-Opening Application will be dismissed, the Respondent's application for review be allowed, the Sequestration Order be set aside and the Creditors' Petition be dismissed.
3. I will hear the parties on the question of costs.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Affidavit of Lorraine Kathleen Carkeek sworn 3 July 2025, p 21.

[2] Affidavit of Lorraine Kathleen Carkeek sworn 3 July 2025, p 22.

[3] Weber v Carkeek [2020] VSC 366.

[17] Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17]-[31]. In Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193, Emmett J held that this entailed "a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar" (at [10]).

[18] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2]-[4] and [18]-[29].

[20] [2021] FCAFC 34; (2021) 286 FCR 166.

[22] Scook v Sims Construction Pty Ltd [2004] FCAFC 306 at [22].

[23] Ex parte Owen; Re Owen [1884] UKLawRpKQB 85; (1884) 13 QBD 113; Bruckland v Newsame (1808) 170 ER 1026; Re Tucker; Ex parte Tucker (1895) 73 LR 170.

[24] [1946] HCA 24; (1946) 72 CLR 575 at 593.

[25] (2021) 285 FCR 365.

[26] Smith QC and Leslie N, The Law of Assignment (2nd ed, Oxford University Press, 2013) at [2.123].

[27] Smith R, Plural Ownership (Oxford University Press, 2005) p 209.

[28] [1912] UKLawRpCh 109; [1912] 2 Ch 648 (ChD) at p 653.

[29] [2020] NSWCA 351 at [21], [22] and [29].

[30] Roberts v Wayne Roberts Concrete Constructions Pty Ltd (2004) 208 ALR 532; [2004] NSWSC 734 at [24].

[31] Section 222 of the Property Law Act 1958 (Vic) (Property Law Act (Vic)).

[32] See also Re Thompson; Ex parte Thompson v Grimley Pty Ltd & Anor [1995] FCA 1148; (1995) 135 ALR 700.

[33] Sistrom v Urh [1991] FCA 315; (1992) 40 FCR 550.

[34] Re Luxtrend Pty Ltd (in Liq) [1997] 2 Qd R 86.

[35] Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540 at [69].

[36] Re Westerton [1919] 2 Ch 104 at 133 (Sargant J).

[37] (2004) 208 ALR 532; [2004] NSWSC 734 at [24].

[38] Compare the approach taken in Deak v Estate of Late Nacinovich and Giurina [2024] VSC710 (Deak) at [18].

[40] An application for special leave was refused in Barranbali Pty Ltd & Ors v Pioneer Australia Pty Ltd & Anor [2021] HCASL 205 (14 October 2021) on the basis that there was no reason to doubt the correctness of the Full Court's decision.

[41] At [63] and [64]. Their Honours were in agreement with Greenwood J on this issue, but did not agree that one of several joint creditors could lodge a proof of debt.

[42] Compare the approach taken in Deak at [18].

[43] McCowan v Stern (1980) 12 BPR 22 at 693.

[44] Compare, for example, the approach taken by the Full Court in Barranbali [3], [38], [39], [47] to the exercise of rights under ss 90-15 and 90-20 of the Insolvency Practice Schedule (Bankruptcy).

[45] Compare Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; State of Queensland v Mr Stradford (A Pseudonym) (2025) 421 ALR 376 at [243] (Edelman J) and FCFCOA Act s 9.

[46] Aware Industries Ltd v Robinson [1997] FCA 571; (1997) 75 FCR 600 at 602 (Northrop, Davies and Sundberg JJ).

[47] Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594.

[49] Which has potential application by r 1.04 of the Bankruptcy Rules.

[50] [2015] FCA 825; (2015) 329 ALR 1. Appeal dismissed in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55.

[52] [2004] WASCA 171 at [89].

[55] Affidavit of Mark Paul Weber affirmed 4 June 2025.

[56] McKenzie-McHarg Affidavit at [8].

[57] McKenzie-McHarg Affidavit at [9].

[58] Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at p 478.

[59] Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [28] (Kenny J) (Bradshaw).

[60] [2012] VSCA 232; (2012) 46 VR 1 at [25] (Harper, Tate JJA and Beach AJA) (Spotlight) at [17] and [18].

[62] To use the characterisation adopted in Spotlight.

[63] MacDonald v Official Trustee in Bankruptcy (2001) FCA 140.

[64] Thai v DCT (1994) 53 FCR 252; Joseph Richard Bryant v Commonwealth Bank of Australia [1995] FCA 971.

[65] See the discussion in Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 at [28].

[66] Compare r 1.04 of the Bankruptcy Rules. Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 at [28].

[67] See affidavit of Mark Paul Weber affirmed 17 October 2025.

[68] Save for the leave to file a short written submission.

[69] See for example the Respondent's 9 July 2025 affidavit.

[71] Spotlight. Noting that the context here is an application for leave to re-open made between reservation and delivery of judgment: Compare Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 3) [2024] FCA 643 at [33].

[72] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

[73] [2021] FCAFC 34; (2021) 286 FCR 166.

[74] [2006] FCAFC 149; (2006) 154 FCR 554 at [31].

[75] Sections 52(4) and (5) of the Bankruptcy Act.

[76] Deputy Cmr of Taxation v Clyne [1984] FCA 345; (1984) 4 FCR 156; Menzies v Paccar Financial Pty Ltd [2011] FCA 460; Toogood v Gott [2023] FCA 1521.

[77] Noting that some delay was occasioned by difficulties in service.

[78] Namely an opinion that Bowen was distinguishable.

[79] Compare ss 26 and 41 of the Evidence Act 1995 (Cth).

[80] See affidavit of service of Daniel Lawrie sworn 16 August 2024 deposing service of the bankruptcy notice. See affidavit of debt of Lorraine Kathleen Carkeek sworn 17 October 2025.

[81] Affidavit of Mark Paul Weber affirmed 17 October 2025, Exhibit R7 p 1-2.

[82] Affidavit of Mark Paul Weber affirmed 17 October 2025, Exhibit R7 p 1-2.

[83] Affidavit of debt of Lorraine Kathleen Carkeek sworn 17 October 2025, Exhibit A4.

[84] Affidavit of search of Riley Phillip Bouveng affirmed 17 October 2025, Exhibit A5.

[85] Weber v Carkeek [2020] VSC 366.

[86] See s 134 of the Property Law Act (Vic).

[87] Starke J G, Assignment of Choses in Action in Australia (Butterworths, 1972) p 6.

[88] Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 241 ALR 32 at [36].

[89] Starke J G, Assignment of Choses in Action in Australia (Butterworths, 1972) p 6.

[90] Accordent Pty Ltd v Bresimark Nominees Pty Ltd [2008] SASC 196; Zahra 15 Pty Ltd v Saffron SA Pty Ltd (2023) 173 IPR 270 at [32] (Judge Manousaridis).

[91] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188 at [46]- [50].

[92] See for example Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at [380].

[93] Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic) s 148.

[94] Affidavit of Mark Paul Weber affirmed 28 May 2025.

[95] (1968) 13 FLR 111 at 115-16. See also Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No 2) (1994) 51 FCR 14 and Ling v Commonwealth [1996] FCA 1646; (1996) 139 ALR 159.

[96] Probiotec Ltd v University of Melbourne [2008] FCAFC 5 at [54].

[97] [1999] FCA 457 at [24] and [25]; see also Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388 esp at [47]-[51].

[98] See Coshott v Prentice [2018] FCAFC 179 at [38].