Baker v Sheridan

[2005] NSWCA 408

CITATION:	BAKER v SHERIDAN & ANOR [2005] NSWCA 408
HEARING DATE(S):	14 November 2005
JUDGMENT DATE:	23 November 2005
JUDGMENT OF:	Mason P at 1
DECISION:	See pars 68-72 of judgment.

CATCHWORDS:	BANKRUPTCY – motion for substitution of appellant – where claimant is assignee of bankrupt appellant’s rights in proceedings – whether trustee’s right to prosecute an appeal is unassignable – where the appeal relates to a claim for money or property by the bankrupt that would be vested in the trustee – election by trustee to prosecute or discontinue appeal – where communication of assignment of right to appeal is tantamount to an election – no discontinuance or abandonment – inability of assignee to pay costs – security for costs – inability of assignee to provide security – whether special circumstances exist. (D)
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) s60 Supreme Court Rules, Pt 51 r9(2) and (3)
CASES CITED:	Baker v Sheridan [2005] NSWSC 89 Baker v Sheridan (No 2) [2005] NSWSC 121 Brien v P & E Phontos Pty Ltd [1999] FCA 1072, 91 FCR 209 Crotty v Anderson (1896) 22 VLR 120 Cummings v Clairmont Petroleum NL (1996) 185 CLR 124 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 Re Lofthouse [2001] FCA 25, 107 FCR 151 Winnote Pty Ltd v Page [2005] NSWCA 362
PARTIES:	Dawn Marie BAKER Paul SHERIDAN & Anor Cathy ALEXANDER (Claimant)
FILE NUMBER(S):	CA 40511/2005
COUNSEL:	Claimant: S G Campbell SC/ C Taylor First Respondent: G Curtin Second Respondent: T G R Parker SC
SOLICITORS:	Claimant: Paul Stubbs Law Office First Respondent: Colin Biggers Paisley Second Respondent: Maurice Blackburn Cashman

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20124/01
LOWER COURT JUDICIAL OFFICER:	James J

CA 40511/2005
SC 20124/2001

MASON P

Wednesday 23 November 2005

Dawn Marie BAKER v Paul SHERIDAN & Ors

JUDGMENT

1 MASON P: Three motions are before me.

2 Motions were filed by the first and second respondents, each seeking dismissal of the appeal against them for non-prosecution. The fate of these motions hangs on the outcome of the third motion.

3 The third motion is filed by Ms Cathy Alexander, the daughter of the now bankrupt appellant and the assignee from the Official Trustee in Bankruptcy of the appellant’s rights in the proceedings. She seeks to be substituted as appellant. Her application is supported by the third respondent, Mr Trevor Baker, the appellant’s son.

Facts

4 The appellant, Mrs Baker, is the widow of Mr Kenneth Baker who died suddenly in 1996. Mrs Baker was the executrix of his will (later obtaining a grant of probate) and the sole beneficiary of his estate.

5 The deceased owned a substantial farming property near Kempsey, including the homestead that had been the matrimonial residence for many years.

6 The deceased had farming and other business dealings with his nephew, Mr Rigg, the second respondent. There was a car repair business known as Kemsey Kar Kare in which the…