Boral Resources v Griffiths

[2005] QCA 371

COURT OF APPEAL

McMURDO P

Appeal No 6035 of 2005

BORAL RESOURCES (QLD) PTY LTD Respondent/Plaintiff
(ACN 009 671 809)

and

DAVID JAMES GRIFFITHS Applicant/
T/HITECH TILT CONSTRUCTIONS First Defendant

BRISBANE

..DATE 30/09/2005

ORDER

McMURDO P: This is an application for an extension of time within which to appeal. It was filed on the 26th of July 2005 and it concerns a decision of a District Court Judge given on the 21st of July 2003. After the filing of the application the applicant has become bankrupt. The application was listed for mention previously before me on the 1st of September in order to ascertain the Trustee and Bankruptcy's attitude.

It was listed for hearing originally on the 1st of September. It was delisted in order to give the Trustee and Bankruptcy his statutory allotted time to make his election. The Trustee has now advised that because an election was not made within the time required by the Bankruptcy Act 1966 (Cth) under s 60 of that Act he is now deemed to have abandoned the action.

In the circumstances I intend, unless you wish to say anything to the contrary, Mr Yam, to strike out the application with costs to be assessed. That is the order made.

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CaseChat Overview and Summary

The case of Boral Resources (Qld) Pty Ltd v Griffiths involves an appeal against a decision made by a District Court Judge on 21 July 2003. Boral Resources is the respondent and plaintiff in this case, while David James Griffiths is the applicant and first defendant. The applicant, who has since become bankrupt, filed an application for an extension of time within which to appeal on 26 July 2005. The application was initially listed for mention on 1 September 2005 to ascertain the Trustee in Bankruptcy's attitude towards the matter. Following this, the application was delisted to allow the Trustee the statutory allotted time to make his election.

The primary legal issue before the court was whether the application for an extension of time within which to appeal should be struck out due to the applicant's bankruptcy and the subsequent abandonment of the action by the Trustee in Bankruptcy. The court was required to consider the statutory provisions of the Bankruptcy Act 1966 (Cth) and whether the Trustee in Bankruptcy had failed to make an election within the required timeframe, thereby leading to the abandonment of the action.

The court found that the Trustee in Bankruptcy had not made an election within the time required by the Bankruptcy Act 1966 (Cth) under s 60 of that Act. Consequently, the court deemed that the action had been abandoned. As a result, the court intended to strike out the application for an extension of time within which to appeal, with costs to be assessed. The court's decision was based on the fact that the applicant had become bankrupt and the Trustee in Bankruptcy had not made an election within the required timeframe, leading to the abandonment of the action.

The final order of the court was to strike out the application for an extension of time within which to appeal, with costs to be assessed. This decision was made due to the abandonment of the action by the Trustee in Bankruptcy, who failed to make an election within the required timeframe under the Bankruptcy Act 1966 (Cth).

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established