Boensch v Pascoe

The appeal concerned a dispute between Mr Boensch and Mr Pascoe, who was the trustee in bankruptcy of Mr Boensch. Mr Pascoe had lodged a caveat on certain land based on an interest arising under section 58 of the *Bankruptcy Act 1966* (Cth). Mr Boensch subsequently initiated proceedings against Mr Pascoe, alleging the caveat had been lodged and maintained without reasonable cause. These proceedings were dismissed, leading to the present appeal to the Court of Appeal.

The central legal issue before the Court of Appeal was whether an appeal lay to it from the primary judge's decision. This question turned on the interpretation and application of section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), which prohibits the institution or determination of an appeal other than in a federal court in certain circumstances. Specifically, the Court had to determine if the appeal involved a "matter for determination arising under the *Bankruptcy Act*".

The Court reasoned that section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth) operated to prevent the appeal from being heard in the Court of Appeal. The Court found that the proceedings, which concerned the lodging and maintenance of a caveat based on a trustee's interest under the *Bankruptcy Act 1966* (Cth), constituted a "matter for determination arising under the *Bankruptcy Act*". Therefore, the prohibition in section 7(5) applied, meaning the appeal could only be instituted and determined in a federal court.

The appeal was dismissed, and Mr Boensch was ordered to pay the costs of the question of jurisdiction.