The appellant, an undischarged bankrupt, had a pending civil action against the respondent law firm.
The trustee in bankruptcy took no steps regarding the action and was subsequently discharged.
Years later, the bankrupt's status to pursue the action was challenged, prompting the trustee to solicit offers for its interest in the action.
The bankrupt moved for an order that the trustee assign the action to him, which was granted by the Deputy Registrar but reversed on appeal.
The Court of Appeal allowed the bankrupt's appeal, holding that under section 40(1) of the Bankruptcy and Insolvency Act, the trustee's prolonged inaction indicated the property was incapable of realization, and it was too late for the trustee to assert an interest.
