Riva NSW Pty Limited v Official Trustee in Bankruptcy

RIVA NSW PTY LIMITED
v
OFFICIAL TRUSTEE IN BANKRUPTCY
[2019] HCASL 389
S259/2019

Having regard to the manner in which the litigation was conducted, and the conclusion of the primary judge that the litigation was an abuse of process, this application for special leave to appeal is not an appropriate vehicle to consider the conclusion of the Court of Appeal of the Supreme Court of New South Wales (Emmett AJA; Bell P agreeing) that there was no property of the trust in respect of which it could be said that the trustee in bankruptcy has become a constructive trustee. The application should be dismissed.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

M.M Gordon J.J Edelman

4 December 2019

CaseChat Overview and Summary

Riva NSW Pty Limited sought special leave to appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that the Official Trustee in Bankruptcy was not a constructive trustee of property belonging to a trust. The litigation had been determined by the primary judge to be an abuse of process, and the Court of Appeal upheld this conclusion, finding that there was no property of the trust in respect of which the trustee in bankruptcy could be said to be a constructive trustee. The High Court was asked to consider whether special leave to appeal should be granted.

The legal issues before the High Court were whether the Court of Appeal erred in concluding that the litigation was an abuse of process and whether there was property of the trust in respect of which the trustee in bankruptcy could be said to be a constructive trustee. The High Court found that the Court of Appeal was correct in its conclusion that the litigation was an abuse of process and that there was no property of the trust in respect of which the trustee in bankruptcy could be said to be a constructive trustee.

The High Court held that the application for special leave to appeal was not an appropriate vehicle to consider the conclusion of the Court of Appeal. The Court held that the Court of Appeal had correctly determined that the litigation was an abuse of process and that there was no property of the trust in respect of which the trustee in bankruptcy could be said to be a constructive trustee. The High Court found that the application for special leave to appeal should be dismissed with costs.

Accordingly, the application for special leave to appeal was dismissed with costs. The Registrar was directed to draw up, sign and seal an order to that effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established