The bank brought an application to continue Supreme Court possession proceedings against the bankrupts pursuant to s58(3) of the Bankruptcy Act.
The court was not certain that leave to proceed was actually required by the bank. This was because it was not entirely clear that the possession proceeding was one with respect to a debt provable in bankruptcy.
However, the court followed Stoker v Starr noting that leave to proceed may be granted without actually determining whether s58(3) is enlivened. This avoids the futile and costly exercise of determining the complex question of whether leave is required.
Thus, the court granted leave to the extent it was required on the basis that the bank was acting ordinarily in attempting to recover its securities and that there was no risk of waste or dissipation of the estate’s assets if leave was granted.
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