CHARLES PHILIPPE LOUIS NILANT as the Trustee of the property of MARIO SILVERIO MACCHIA a former bankrupt

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Cross-vesting legislation - Application for extension of time in which to appeal - Whether 'proceedings by way of an appeal'

Bankruptcy - Jurisdiction - Appeal from proceedings within jurisdiction of state Supreme Court - Matters of exclusive federal jurisdiction raised on appeal - Cross-vesting legislation - Whether interests of justice require state Supreme Court to determine appeal

Procedure - Attempt to relitigate matters previously determined in another jurisdiction - Whether an abuse of process - Whether application for an extension of time should be refused

Administration Act 1903 (WA), s 8, s 29(1)

Bankruptcy Act 1966 (Cth), s 5, s 27(1), s 31(1)(f)

Public Trustee Act 1941 (WA), s 9

1 STEYTLER P: The appellant requires an extension of time for the purpose of lodging an application for leave to appeal.

2 The appellant's mother died intestate on 21 March 1995. Letters of administration were granted to the first respondent, the Public Trustee, on 25 August 1998. In 2002 the appellant brought proceedings against the Public Trustee. He sought an order under s 29(1) of the Administration Act 1903 (WA) revoking the administration. He wanted letters of administration to be granted to him instead. The Public Trustee responded by bringing an application for orders that the appellant was not a person interested in the estate of his mother and that his action be dismissed. The Master upheld that application and made orders accordingly on 15 June 2004. The appellant wants leave to appeal against those orders. His appeal notice was lodged on 17 April 2008, some three years and nine months out of time.

3 The proceedings have an extraordinary history. It is necessary to relate some of it in order to explain the issues that have arisen.

4 The appellant became a bankrupt on 16 September 1991. The second respondent, Mr Charles Nilant, was appointed as his trustee in bankruptcy. When the appellant's mother died intestate on 21 March 1995, he and his two siblings were entitled to share equally in her estate (the principal asset of which was real estate in Perth) under s 14 of the Administration Act. However, the appellant was then still bankrupt. This was because his statement of affairs had not been filed with the Registrar in Bankruptcy until 21 January 1994. This was a breach of s 54(1) of the Bankruptcy Act 1966 (Cth). The appellant had not filed a statement of affairs before this time because he had wrongly assumed that a non-complying statement of affairs previously filed with the Registrar for a different reason would serve that purpose. The appellant was consequently not discharged from bankruptcy until 22 January 1997.

5 Because he did not want his trustee in bankruptcy to take his entitlement to share in his mother's estate, the appellant brought an application in the Federal Court, in October 1995, for a declaration that a statement of affairs had been filed by him with the court on 16 September 1991. If made, this declaration would have the consequence that, under s 149 of the Bankruptcy Act, the appellant was discharged from bankruptcy on 17 September 1994, before his mother's death. He sought, in the alternative, an order under s 33(1)(c) of the Bankruptcy Act abridging the time limit under s 149 of the Act for his discharge from bankruptcy. His application was opposed by Mr Nilant. It came before Lee J. On 11 April 1997 Lee J made an order abridging the period of time before discharge to 13 months from 21 January 1994 (the date upon which the statement of affairs was filed).

6 Mr Nilant appealed against Lee J's decision. The appeal was upheld by the Full Court of the Federal Court: Nilant v Macchia (1997) 78 FCR 419. The court held that Lee J had lacked the power, pursuant to s 33(1)(c) of the Act, to abridge the time limited by s 149(3) of the Act. It remitted the matter to Lee J for further consideration.

7 After a long wait, in March 1999 the appellant applied for and was given leave to file a further amended application. After further amendments, the application was heard on 23 February 2000. The appellant ultimately sought an order that the statement of affairs that he had signed on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar, and a copy furnished to the trustee in bankruptcy, on 16 September 1991 in compliance with the requirements of s 54(1) of the Bankruptcy Act. On 27 March 2000, Lee J granted that relief under s 306(1) of the Act.

8 Mr Nilant again appealed. The Full Court of the Federal Court upheld the appeal: Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238. The court held that s 306(1) could not be invoked in circumstances in which no step whatsoever had been taken by the bankrupt in purported compliance with the requirements of s 54(1).

9 After another long delay, in 2002 the appellant brought his application in the Supreme Court for revocation of the letters of administration granted to the Public Trustee. As I have mentioned, on 11 December 2003 the Public Trustee brought his own application for a declaration that the appellant was not a person interested in his late mother's estate. I have said that the Master gave his decision on 15 June 2004.

10 The appellant did not then seek leave to appeal against the Master's decision. Instead, on 2 June 2005, some 12 months later, he lodged a further application in the Federal Court. This time he said that he had made a statement of affairs dated 7 October 1991 and delivered it to Mr Nilant's employee. He had not previously raised this contention. He sought an order that the statement of affairs dated 7 October 1991 be treated as having been filed in the office of the Registrar in Bankruptcy on 7 October 1991, in compliance with the requirements of s 54(1) of the Bankruptcy Act. The respondent to that application, Mr Nilant, brought an application for the summary dismissal, or a permanent stay, of the appellant's application upon the grounds that it was an abuse of process. The basis for that contention was that the appellant was attempting to re-litigate a matter that had already been litigated. Mr Nilant also contended that the appellant's claim disclosed no reasonable cause of action in any event.

11 Mr Nilant's application for summary dismissal was heard by Siopis J in the Federal Court on 5 October 2005. Some five months later, on 2 March 2006, before judgment had been given by Siopis J, the appellant made another application. This was filed in the Federal Magistrates Court. In this application, the appellant sought a declaration, pursuant to s 116 and s 58 of the Bankruptcy Act, that his chose in action for due administration of his mother's estate was not after-acquired property for the purposes of the Bankruptcy Act. He also sought a declaration that all of his rights, title and interest in the estate did not form part of his property until letters of administration were granted to the Public Trustee as administrator on 25 August 1998, after his discharge from bankruptcy.

12 On 13 March 2006, Siopis J summarily dismissed the appellant's application relating to his statement of affairs dated 7 October 1991: Macchia v Nilant (Trustee) [2006] FCA 213. Siopis J was satisfied that there was a clear case of an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. He went on to say that, had it been necessary for him to reach any conclusion in that respect, he would have found that the appellant's substantive application was an abuse of process.

13 On 3 August 2006, McInnis FM gave his decision on the application filed on 2 March 2006: Macchia v Nilant [2006] FMCA 1095. He, too, found that there was an Anshun estoppel. He said that the issue raised before him ought to have been raised in the 2000 proceedings and, at the very least, in those before Siopis J. He dismissed the application.

14 After a further delay of more than eight months, the appellant filed his appeal notice in these proceedings.

15 In the decision under appeal, Master Sanderson ruled that the right acquired by the appellant on the death of his mother was one to the due administration of the estate. He said, in reliance upon Silvia v Thomson (1989) 87 ALR 695, 697, that the chose in action for the due administration of the estate arose upon the death of the appellant's mother. He said that, because the appellant was then bankrupt, s 116 of the Bankruptcy Act had the effect that the chose in action passed to his trustee in bankruptcy and was property available for distribution among his creditors. Because there would be no surplus, he found that the appellant was not 'a person interested' in the estate for the purposes of s 29(1) of the Administration Act.

16 There are three grounds of appeal. They are that:

The learned Master erred in law in finding that:

(a) the appellant's interest in the estate of his deceased mother ... arose on the death of his mother and not as of the date of the appointment of the Administrator to the intestate estate of his mother;

(b) the appellant is not a person interested in the estate of his mother pursuant to section 39 [sic] of the Administration Act 1908 (WA);

(c) the interest of the deceased [sic] in the estate of his mother passed to his trustee in bankruptcy on the date of death of his mother.

17 The orders sought by the appellant in the appeal proceedings are orders granting the necessary extension of time and leave to appeal and an order that 'The declaration made by Master Sanderson that the appellant is not a person interested in the estate of the deceased be set aside and in lieu thereof an order made that the appellant has an interest in the estate of the deceased as a beneficiary'.

18 The Public Trustee, although represented by counsel for the purposes of the appeal, chose to take no part in it. His counsel sought, and was granted, leave to be excused. Mr Nilant was not a party to the application before Master Sanderson. However, he was joined as a party for the purposes of the appeal. His counsel raised three contentions in opposition to the application for an extension of time and for leave to appeal. The first is that this court lacks the jurisdiction to make the orders sought by the appellant. The second is that the appeal is an abuse of process. The third is that there is, in any event, no substance to the appeal. The first two propositions are supported by a notice of contention that has been lodged on behalf of Mr Nilant. Counsel for Mr Nilant contended that the extension of time should be refused or, if granted, that leave to appeal should be refused.

19 Paragraph 1 of the notice of contention contends that the declaratory order sought by the appellant in the appeal is outside the jurisdiction of the Supreme Court because it would constitute a declaration against the title of the trustee in bankruptcy to the interest in the deceased estate. Jurisdiction to make such a declaration is said to repose exclusively in federal courts by virtue of s 27(1) of the Bankruptcy Act. That section provides that:

The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than:

(a) the jurisdiction of the High Court under section 75 of the Constitution; or

(b) the jurisdiction of the Family Court under section 35 or 35A of this Act.

20 'Bankruptcy' is defined in s 5 of the Bankruptcy Act as meaning, in relation to jurisdiction or proceedings, 'any jurisdiction or proceedings under or by virtue of this Act'. Section 31(1)(f) of the Act provides that, in exercising jurisdiction under the Act, the court shall hear and determine 'applications to declare for or against the title of the trustee [of the estate of the bankrupt] to any property'. It is consequently plain that jurisdiction to hear an application of that kind is reserved exclusively to federal courts: Scott v Bagshaw [2000] FCA 816; (2000) 99 FCR 573 [17] - [22]; Green v Schneller [2001] NSWSC 897; (2001) 164 FLR 82 [22] (Barrett J); Porteous v Donnelly [2003] FCA 783; (2003) 200 ALR 274; Anderson v Peldan [2004] QSC 335; (2004) 183 FLR 354.

21 It seems to me that the application before the Master could not be categorised as one 'to declare for or against the title of the trustee to any property'. He was asked only to decide whether or not the appellant was a person interested in the estate of his mother for the purposes of s 29(1) of the Administration Act. He had the necessary jurisdiction to do so. Proceedings of that kind are not proceedings 'under or by virtue of' the Bankruptcy Act: Sutherland v Brien [1999] NSWSC 155; (1999) 149 FLR 321 [8] (Austin J). They are proceedings within the ordinary jurisdiction of the Supreme Court. The trustee in bankruptcy was not a party to the proceedings. He could consequently not be bound by anything decided in the course of determining the appellant's standing under s 29(1) of the Administration Act. No doubt, it would have been preferable if the trustee of the appellant's bankrupt estate had been joined as a party to the application and if the application had been determined only after hearing from all interested parties and in such a way as to bind all of those parties. Had that been done, as it seems to me it should have been, the application should have been determined in a federal court. However, it was not done, as I have said, and the Master had jurisdiction to do what he did.

22 There remain questions concerning the jurisdiction of this court to embark upon the appeal, having regard for the way in which the appeal has been run. If I am right in my conclusion that the Master had jurisdiction to make the decision he did, and if the only question for this court was whether he was right in the conclusion at which he arrived as between the parties to the hearing before him, then, on the face of it, this court would have the necessary jurisdiction to determine the appeal. However, as I have said, the trustee of the appellant's former bankrupt estate (Mr Nilant) has been joined as a party to the appeal and amongst the orders wanted on appeal is an order that the appellant has an interest in the estate of the deceased as a beneficiary. Assuming (without deciding) that an order of that kind is competent in an appeal in which no attempt to obtain it had been made in the primary proceedings, to which Mr Nilant was not a party, then, it seems to me, the order now sought would amount to an application for an order to declare 'against the title of the trustee to any property' for the purposes of s 31(1)(f) of the Bankruptcy Act. It is consequently a matter falling within the exclusive jurisdiction of the Federal Court under s 27(1) of the Bankruptcy Act.

23 Section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (Cross-Vesting Act) provides that, subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge in the Supreme Court of a State (other than a State Family Court) is a matter arising under an Act specified in the Schedule to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that proceeding shall be instituted only in, and shall be determined only by, relevantly, the Full Court of the Federal Court or, with special leave, the High Court. The Bankruptcy Act is one of the Acts specified in that Schedule. Section 7(7) of the Cross-Vesting Act provides that, where the Full Court of the Supreme Court of a State (which, by s 3(1) includes the Court of Appeal) commences to hear a proceeding by way of an appeal and, before it determines the proceeding, it appears that it is one to which subsection (5) applies, the court shall, unless the interests of justice require it to proceed to determine the proceeding, transfer it, relevantly, to the Full Court of the Federal Court.

24 The words 'proceedings by way of an appeal' have been given a wide meaning in NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 and in NEC Information Systems Australia Pty Ltd v Lockhart (1992) 108 ALR 561. In the former case Kirby P held that a summons for leave to appeal was 'a proceeding by way of an appeal' for the purposes of s 6(9) of the Cross-Vesting legislation (523). Meagher JA (with whom Samuels JA agreed) was of the view that the expression should be construed as covering all the steps in the appellate process, whatever they may happen to be in a given case (531). In the latter case, Black CJ, Lockhart & Gummow JJ held that the expression 'should be interpreted as including all steps in the appellate process including a summons, application or motion for leave to appeal' (574).

25 Where the court does no more than deal with an application for an extension of time for the purpose of bringing an application for leave to appeal it is unclear whether the court has 'commenced to hear a proceeding by way of appeal' for the purposes of s 7(7) of the Cross-Vesting Act. However, assuming (without deciding) that such an application does fall within that section (as might be thought to be the position on the authority of the cases to which I have referred), it seems to me that this is a case in which the interests of justice require that this court should proceed to determine the application. I have reached that conclusion after taking into account a number of considerations. First, for reasons that I will explain below, I have formed the opinion that this is a case in which an extension of time should plainly not be granted. That, of itself, would not ordinarily be a sufficient reason for declining to transfer the matter. However, the issue of a possible transfer of the proceedings was raised late and there has been full argument concerning the merits of the application. To transfer the proceedings now (in circumstances in which the same arguments will again have to be put, leading to an outcome which seems to me to be inevitable) will add significantly to the costs of the parties, neither of whom seek a transfer to the Federal Court, for no benefit. Moreover, as I have earlier found, nothing that has been decided in the proceedings under appeal has determined any matter within the exclusive jurisdiction of the Federal Court. I consequently propose to deal with the application.

26 As will be apparent from the history recited earlier in these reasons, the appellant has brought three separate applications in the Federal Court, none of which was necessary if the point he now seeks to agitate is correct.

27 I have said that, in the first of the applications before Lee J, the appellant sought to adjust the date of his discharge from bankruptcy to a date prior to his mother's death. His only purpose in doing so was to avoid losing his interest in his mother's estate to the creditors in his bankruptcy. The point now raised is essentially that, on intestacy, the administrator of the estate (the Public Trustee) derives his title from the grant of letters of administration and, hence, the chose in action for due administration of the estate (being the only relevant property for present purposes) could not arise until the grant. The appellant goes on to argue that, because the grant to the Public Trustee occurred on 25 August 1998, the chose in action arose only after the appellant had been discharged from bankruptcy and, hence, could not vest in the trustee in bankruptcy for the benefit of creditors. That is an argument that could, and should, have been raised in the first application to Lee J.

28 Precisely the same is true of the second application (in which the appellant sought relief under s 306(1) of the Bankruptcy Act) and the third (in which he sought an order treating his actions on 7 October 1991 as if they amounted to sufficient compliance with s 54(1) of the Bankruptcy Act).

29 Moreover, in the appeal from the second of the applications brought before Lee J, the court specifically noted that if, as at the date of his mother's death, the appellant had not been discharged from bankruptcy, any interest he had in the real estate comprising her estate would be available to his creditors [6] (Hill J). Also, in his judgment given in respect of the third application, Siopis J remarked that [16]:

The date on which the applicant was discharged from bankruptcy assumes its significance for the applicant in these circumstances. On 21 March 1995, the applicant's mother died intestate. The principal asset of the deceased estate is real property located in North Perth. Unless the applicant can obtain an order from this Court which has the effect of changing the date of discharge of the applicant from bankruptcy, any interest which the applicant may have in the property comprising his mother's deceased estate, will be regarded as after acquired property and would be property available to his creditors.

30 Furthermore, as I have mentioned, the appellant failed in his application in the Federal Magistrates Court for a declaration that his chose in action for due administration of his mother's estate was not after-acquired property for the purposes of his bankruptcy. I have said that, in those proceedings, he sought a declaration that all his rights, title and interest in the estate did not form part of his property until letters of administration were granted to the Public Trustee as administrator. I have also mentioned that McInnis FM dismissed that application upon the basis that the appellant was estopped from bringing it. He has not appealed from that decision, given more than two years ago.

31 Finally, before turning to the applicable principles, I should mention that the appellant has undertaken to the court that, if successful in his appeal, he will not pursue his substantive application brought in the Supreme Court (for revocation of the letters of administration granted to the Public Trustee). That, of course, means that success in the appeal will not advance his position in that action.

32 It is not necessary, for a proceeding to amount to an abuse of process by way of attempted re-litigation of a dispute already judicially determined, that one of the doctrines of res judicata, issue estoppel or Anshun estoppel is applicable: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [66] (French J); Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 [25]. In Spalla, French J said [67] - [68]:

The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] UKHL 38; [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is 'a general public interest in the same issue not being litigated over again'. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. In that regard he referred to Reichel v Magrath and Hunter v Chief Constable of the West Midland Police.

In Johnson v Gore Wood & Co [2000] UKHL 65; [2002] 2 AC 1 (at 31), Lord Bingham referred to what he called 'Henderson v Henderson abuse of process' as separate and distinct from cause of action estoppel and issue estoppel although having much in common with them:

'The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.'

The judgment required in such cases was described by Lord Bingham as (at 31):

' ... a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.'

The other Law Lords agreed with Lord Bingham on the abuse of process question.

33 French J went on to consider some of the matters that are relevant to the determination whether there was an abuse of process. He said [70]:

The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court. As Giles CJ said in State Bank of New South Wales Ltd v [Alexander] Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64, 089):

' ... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice ... '

His Honour set out a non-exhaustive list of matters relevant to the determination whether there was an abuse of process in connection with the issue to be litigated in the second proceedings. These factors were:

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

These considerations offer a non-exhaustive guide and an indication of the nature of the Court's task in such cases.

34 In my opinion the bringing of these proceedings in the present case amounts to an abuse. To require the trustee in bankruptcy, once again, to submit to litigation designed to achieve the same end as has previously been sought to be achieved on no less than five occasions seems to me to be an unjustifiable oppression and to bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251, 286; Walton v Gardiner (1993) 177 CLR 378, 393. In Reichel v Magrath (1889) 14 AC 665, 668, it was said that 'it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again' (see also State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423, 64,089). The present is a case in which, recognising that the power to dismiss for abuse is to be exercised sparingly, that drastic remedy would be justified.

35 However, the first question to be answered in this case is, as I have said, not whether these proceedings should have been dismissed, or should now be dismissed, on the grounds of abuse, but whether an extension of time should be granted for the purpose of bringing the appeal. As I have earlier foreshadowed, in my opinion it should plainly not be granted.

36 There is no basis upon which, in the circumstances to which I have referred, this court could properly grant an extension of three years and nine months, least of all in circumstances in which there is no adequate explanation for the delay. The only explanation offered is that the appellant has been busy with the other litigation to which I have referred and has been suffering from depression. Although I do not doubt that depression can be a debilitating illness, the existence of the other litigation demonstrates that it did not prevent the appellant from conducting that litigation and, consequently, should not have prevented him from bringing this appeal, had he chosen to do so. Instead, he appears to have made a deliberate choice to proceed with his application in the Federal Court. Having failed in that court, and having chosen not to appeal against the decision, he should not now be permitted to lodge an appeal in this court, having declined to do so for close to four years. That is especially so in circumstances in which, if successful in the appeal, he does not intend to pursue his substantive application before the primary court and in which he has, on a number of occasions spreading over more than 10 years, sought to achieve the same outcome by other means.

37 My conclusion does not depend upon any analysis of the strength of the appellant's legal contentions. The length of the delay, the reasons for it and the circumstances in which it arose are more than sufficient to justify the decision to refuse an extension (for a statement of the considerations that are ordinarily relevant see Girando v Girando (1997) 18 WAR 450 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196). However, I should say, in any event, that I doubt that the appellant's contentions had much prospect of success.

38 I have said that the point that the appellant now wants to raise is essentially that the Public Trustee, as administrator of the intestate estate, derived his title from the grant of letters of administration on 25 August 1998, after the appellant's discharge from bankruptcy, with the consequence that the chose in action for the due administration of the estate, being the only property that could vest in him for the benefit of the appellant's creditors, never did so.

39 As counsel for the respondent points out, the question that arises is whether any property of the appellant vested in his trustee in bankruptcy pursuant to s 58(1) of the Bankruptcy Act. That section reads as follows:

(1) Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

40 The words 'after-acquired property', in relation to a bankrupt, mean 'property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt': s 58(6). Section 116 of the Act provides that property divisible amongst the creditors of the bankrupt includes (amongst other things and subject to exclusions that are not presently relevant):

(a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and

(b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge.

41 The words 'the property of the bankrupt' are defined, for the purposes of s 58(1), as meaning (s 5(1)):

(i) the property divisible amongst the bankrupt's creditors; and

(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt ...

42 The word 'property' is defined in s 5(1) as meaning:

real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.

43 When regard is had for these definitions, it can be seen that s 58(1) has a wide reach: Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 132, 145. It catches, relevantly, any interest, whether present or future, vested or contingent, arising out of or incident to real or personal property of any description and any rights and powers in relation to the property, including the capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of the property that might have been exercised by the bankrupt for his or her own benefit.

44 There is no doubt that the chose in action constituted by the right of a beneficiary under a will to due administration of the deceased estate is 'property' as defined in s 5(1): Re Pevsner; Ex parte Trustee in Bankruptcy [1983] FCA 119; (1983) 68 FLR 254, 256; Silvia, 696; Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, 314. Nor is there any doubt that the right vests in a trustee in bankruptcy as soon as it vests in the beneficiary, on the death of the testator: Schultz, 314. A beneficiary under a will, although not the legal or equitable owner of the assets the subject of the devise and bequest, has, by virtue of the chose in action created by that devise and bequest, an expectation that the assets will pass to him or her upon completion of the administration (subject to their being realised to meet outstanding liabilities and the costs of the administration) and an interest in respect of those assets: Schultz, 314. The interest is of a kind that, when a beneficiary transmits the chose in action, or it passes by operation of law (as, for example, a provision of the Bankruptcy Act), the transmission encompasses not only the chose in action but also the expected fruits of that chose in action: In re Leigh's Will Trusts [1970] Ch 277, 282; Schultz, 314.

45 As will be apparent, counsel for the appellant contends that the position is different in the case of a distributive share on intestacy. The only potentially relevant property in such a case is the chose in action for due administration of the intestate estate. I have said that counsel for the appellant argues that the chose in action cannot arise until the administrator has title to the estate and that this happens only on the grant of letters of administration. He submits that in such a case, unlike a grant of probate under a will (where the executor's title relates back to the date of death, as it derives from the will itself), there is no relation back.

46 Counsel for the appellant relies, in this last respect, on Re Pevsner. That case concerned a beneficiary under a will who had been discharged from bankruptcy while the estate was under administration and before probate of the will had been granted. The beneficiary was found to have had a chose in action against the administrator for the due administration of the testator's estate. This was found to be property for the purposes of s 58 and s 116 of the Bankruptcy Act. Relevantly, for present purposes, Sheppard J said that the chose in action became vested in the trustee upon the grant of letters of administration in the deceased estate. However, in that case there was no reference to any other applicable legislation and nor did it matter to the outcome of the case when the right in question had vested, so long as it was prior to the discharge of the bankrupt (who had been discharged after the grant of letters of administration).

47 In this State, s 9 of the Public Trustee Act 1941 (WA) provides that, upon the death of any person and until probate or administration is granted in respect of the estate, the estate is deemed to vest in the Public Trustee. The Public Trustee is given protective powers by s 10 of the Act. He may, for example, apply for an order entitling him to administer the estate in the case of an intestacy if, amongst other situations, administration is not applied for within three months, the estate or any substantial portion thereof is perishable or in danger of being lost or destroyed, or the court considers it expedient or proper. At the material time, s 8 of the Administration Act provided that, upon the grant of probate or administration, all of the real and personal estate of a deceased person shall, 'as from the death of such person', pass to and become vested, on testacy or partial testacy, in the executor to whom probate has been granted or, on intestacy, in the administrator for all the estate and interest of the deceased. Section 14 of the Act provided for distribution of an intestate estate according to the entitlements provided for by that section (and it is noteworthy that these are expressed to be conditional on surviving the death of the deceased and not on surviving until the grant of administration) and, as I have said, in this case the appellant and his two siblings were entitled to share equally in the estate. Section 25 of the Administration Act gave to any of the adult persons entitled in distribution to the estate of the intestate a right to apply for a grant of administration.

48 It consequently seems to me that there is no valid distinction, for the purposes of s 58 and s 116 of the Bankruptcy Act, between the right to due administration of a testate estate, on the one hand, and that to the due administration of an intestate estate, on the other. In each case the title (of the administrator in the case of intestacy and of an executor in the case of a will) relates back to the date of the death of the testator (on the grant of letters of administration, in the case of the administrator, and on the grant of probate, in the case of a will). Also, in each case the rights to succession 'derive from and are determined in substantial character as at the date of death': Hogan v Hogan (No 2) [1981] 2 NSWLR 768, 773 (Street CJ). Moreover, the interest of a person on intestacy is transmissible: Cooper v Cooper (1874) LR 7 HL 53, 66 (cited, without comment, in this respect in Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; [1965] AC 694, 710; [1964] UKPCHCA 2; (1964) 112 CLR 12, 20).

49 It consequently seems to me that the appellant's contentions are fraught with difficulty. However, whatever may be the position in this respect, this is not a case in which it would be appropriate to grant an extension of time, for the reasons I have earlier given.

50 I would refuse the application for an extension.

51 LE MIERE AJA: I agree with the reasons of Steytler P.