The plaintiffs claimed damages for their economic loss and under s 17(e), (f), (g) of their statement of claim, sought damages for loss of credit and reputation, for inconvenience, mental distress and strain as well as for injury to their physical and mental health. Subsequent to the issue of proceedings, both plaintiffs became bankrupt but obtained their discharge before the case was called on for hearing. The defendants applied to the trial judge for a determination (as a separate question) that the causes of action sued upon had passed to the plaintiffs' trustee in bankruptcy on the making of the sequestration orders. The trial judge upheld the defendants' submission and summarily dismissed the plaintiffs' action. The Court of Appeal noted that the trustee in bankruptcy had not been called upon to elect and concluded that the correct order should have been an order staying the proceedings until an election to prosecute or discontinue the action had been made. The appeal was allowed for that limited purpose; in all other respects the Court of Appeal upheld the decision of the trial judge. Handley JA (with whom Kirby P and Meagher JA agreed) at pp 4-5 described the plaintiffs' claim for damages in these terms:
"The plaintiffs claimed damages in the proceedings in the manner particularised in s 17(e), (f) and (g) of their amended statement of claim but these claims were consequential upon alleged breaches of professional duty owed to them by the defendants in relation to the purchase of the land and the contract by the vendor to erect a dwelling house on it. The plaintiffs' claims for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health therefore were not claims `without reference to their rights of property' within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiffs' financial and property interests as a result of alleged breaches of professional duty by the solicitors."
14 Given what is here claimed by Dr Falamaki, it is not apparent that his claim falls into any different category. There is no question that he sincerely holds a strong belief in the matters which he wishes to advance in these proceedings. He undoubtedly believes himself to be the victim of a great wrong done to him by the defendant and those who have worked on its behalf, in relation to his development of his property. His claim is in part that the result has been personal suffering and injury, although the nature of such injuries has apparently not been particularised.
15 Even so, on the approach of these authorities, it must be concluded that the concluding remarks of the Full Court in Bryant apply equally to the case which Dr Falamaki wishes to advances in these proceedings. There it was said at 564:
The remarks of Handley JA are apposite to and fairly summarise Mr Bryant's position. Mr Bryant's causes of action, as pleaded in his statement of claim, are essentially claims which are referable to his financial and property rights. That is not to deny him his right to allege "personal injury or wrong done to" him or members of his family. But if the injury that was suffered or the wrong done arose as a direct result of the alleged infringements of his financial or property rights, as was the case in Faulkner v Bluett , then "the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt". (at 119) To apply the language of Handley JA in Manningel v Hewlett to Mr Bryant's circumstances his claims for stress and suffering were "consequential upon alleged breaches" of duty said to be owed to him by the Bank as a mortgagee or secured creditor and were not claims "without reference to [his] rights of property", within the principle stated by Dixon J in Cox v Journeaux .
16 In this case there can be no question that the claims in relation to personal injury which Dr Falamaki wishes to pursue are also all consequential upon the alleged duties which he claims the defendant owed him in relation to the building works undertaken on his property. That is the primary and substantial cause of action resulting in the pecuniary loss which Dr Falamaki claims. It follows that, like in Bryant, it must be concluded that s 60(4) of the Bankruptcy Act cannot be relied upon to sever Dr Falamaki's claim in the manner which he seeks. The result is that unless Dr Falamaki's appeal to the Federal Court succeeds, the effect of s 60(3) is that the entirety of these proceedings have been abandoned and that accordingly, they must be dismissed. It is appropriate, accordingly to order that in the event that the appeal does not succeed, that these proceedings stand dismissed and that if the appeal is upheld that the parties may approach to have the matter relisted.