Case: Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Outcome: applied
Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 34 The answer, in my opinion, is supplied by analogy with the following passage from the judgment of Handley JA, with whom Kirby P (as his Honour then was) and Meagher JA agreed, in the unreported New South Wales Court of Appeal decision Manningel v Hewlett (12 June 1991), which was cited with approval by O'Loughlin and Merkel JJ in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 , at 563: The plaintiffs claimed damages in the proceedings in the manner particularised in paras 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.