Case: Rose v Buckett [1901] 2 KB 449
Outcome: considered
To the extent that this conduct in allegedly burgling applicant's home and stealing documents constitutes undue harassment in breach of s 60 , a connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer must be established. The applicant does not plead how the conduct of the respondents in stealing documents constitutes undue harassment in relation to the supply of goods or services, or payment for goods or services. However rights of action in relation to unlawful access of the respondents to the applicant's home and his possessions are in the realm of tort and potentially relate to a personal injury or wrong to the applicant. In Rose v Buckett [1901] 2 KB 449 the defendants had entered the bankrupt's house on several occasions and seized goods, furniture and effects. The bankrupt alleged damage to premises, damage to goods and 'personal inconvenience and annoyance to himself and family, by being wrongfully deprived of his property and of the quiet enjoyment of his house and premises from time to time by the defendants'. Collins LJ said: 'Where the damages to property by trespass and conversion are merely nominal, the cause of action in respect thereof is not regarded as one affecting the value of the property passing to the trustee, so as to give him a right of action in respect thereof, but rather as a wrong personal to the bankrupt himself, which could not found an action by his trustee. This view is well put by Cresswell J in his opinion delivered to the House of Lords in Beckham v Drake. He says: "In (a number of cases) it was decided that rights of action for trespass to land or goods in the actual possession of a trader do not pass to his assignees if he becomes bankrupt, because those rights of action are given in respect of the immediate and present violation of the possession of the bankrupt, independently of his rights of property, and are an extension of the protection given to his person, and the primary personal injury to the bankrupt is the principal and essential cause of action".' (at 455-456, cf Stirling LJ at 457) 52 For present purposes however, I also note that the applicant has not particularised the nature of any personal injury he has suffered as a result of the respondents stealing his files and records, or indeed any other wrongs he alleges. He has also not drawn a nexus between the conduct of the respondents and any personal injury or wrong, or between the provisions of the Trade Practices Act and the wrongs he alleges. Although it is possible that the applicant experienced personal injury by being wrongfully deprived of his property and of the quiet enjoyment of his house and premises as was the case in Rose v Buckett , the manner in which the statement of claim is framed in respect of these facts could equally vest the trustee in bankruptcy with the claim, on the basis that any records of the applicant relevant to his financial position vested in the trustee and deprivation of those records gives rise to an action in the trustee. Accordingly, I refer to my comments in respect of Count 1 in this regard. 53 Accordingly, the applicant lacks standing in respect of this claim. 54 Similarly to Count 2, although the applicant claims that he suffered 'personal injury' in respect of this conduct of the respondents, the substance of this complaint is that he suffered financial injury in respect of transactions involving the Palmwood Drive Property. Claims with respect to financial damage have clearly vested in the applicant's trustee in bankruptcy. To the extent that a claim exists under ss 51AA and 52 Trade Practices Act in respect of these facts, it has clearly vested in the applicant's trustee in bankruptcy.