Cole v Challenge Bank Limited

FEDERAL COURT OF AUSTRALIA

Cole v Challenge Bank Limited [2002] FCAFC 200

BANKRUPTCY - appeal against dismissal of proceeding – appellants became bankrupt while appeal pending - letter from solicitors for trustee in bankruptcy stating that trustee did not intend to pursue the appeal - no notice of discontinuance filed - whether trustee elected in writing to discontinue the appeal - whether trustee deemed to have abandoned appeal – whether Court should order that appeal be dismissed

COSTS - election by appellants’ trustee in bankruptcy to discontinue appeal or deemed abandonment of appeal – motion by respondent for dismissal of appeal – order dismissing appeal – whether bankrupt appellants should be ordered to pay respondents’ costs of appeal and of motion

Trade Practices Act 1974 (Cth) ss 72, 87
Fair Trading Act 1987 (WA) ss 77, 79
Federal Court Rules O 20 r 2, O 52 r 19
Bankruptcy Act 1966 (Cth) s 60

Cole v Challenge Bank Ltd [2001] FCA 1425 considered

GREGORY OCTAVIUS COLE AND WENDY SUZANNE COLE v CHALLENGE BANK LIMITED AND NORGARD CLOHESSY
W 507 of 2001

GRAY, RD NICHOLSON AND EMMETT JJ
20 MAY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 507 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GREGORY OCTAVIUS COLE AND WENDY SUZANNE COLE
APPELLANTS

AND:

CHALLENGE BANK LIMITED
FIRST RESPONDENT

NORGARD CLOHESSY
SECOND RESPONDENT

JUDGES:

GRAY, RD NICHOLSON AND EMMETT JJ

DATE OF ORDER:

20 MAY 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellants pay the respondents’ costs of the motion pursuant to the notice of

motion filed on 3 May 2002 and of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 507 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GREGORY OCTAVIUS COLE AND WENDY SUZANNE COLE
APPELLANTS

AND:

CHALLENGE BANK LIMITED
FIRST RESPONDENT

NORGARD CLOHESSY
SECOND RESPONDENT

JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE:	20 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

GRAY J:

1. Before the Court is a notice of appeal.  The question has arisen, in the light of the bankruptcy of the appellants, whether the appeal can proceed and what are the consequences of its inability to proceed.

2. The appellants are Gregory Octavius Cole and Wendy Suzanne Cole. On 11 May 2001, they filed an application in the Court, accompanied by a statement of claim. Against the first respondent, Challenge Bank Limited, the application claimed damages pursuant to s 72 of the Trade Practices Act 1974 (Cth), orders pursuant to s 87 of that Act, alternatively damages for breach of contract and costs. Against the second respondent, Norgard Clohessy, a firm of chartered accountants, the appellants claimed equitable damages for breach of

   
   

   fiduciary duty, damages for negligence, damages pursuant to s 79 of the Fair Trading Act