Elias v Pascoe

[2006] NSWCA 110

New South Wales

Court of Appeal

CITATION:	Elias v Pascoe [2006] NSWCA 110 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 March 2006
JUDGMENT DATE:	9 May 2006
JUDGMENT OF:	Giles JA at 1; Santow JA at 66; Bryson JA at 113
DECISION:	Leave to appeal granted. Appeal allowed with costs. Orders at [65].
CATCHWORDS:	PRACTICE AND PROCEDURE – BANKRUPTCY – summary judgment – whether arguable case that claimant entitled to defend opponent’s action – jurisdiction of District Court to hear challenge to Notice issued pursuant to s139ZQ Bankruptcy Act 1966 – whether District Court proceedings should have been stayed to enable claimant to pursue application in Federal Magistrates Court to set aside Notice.
LEGISLATION CITED:	Bankruptcy Act 1966 (C’th) s5, s27, s120, s121, s123, s139J, s139ZQ, s139ZR, s139ZS, s139ZT, s139ZQ, Constitution s75
CASES CITED:	Cottrell v Nichols [2003] FCA 1351 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] 112 CLR 125 Green v Schneller (2001) 189 ALR 464 Halse v Norton (1997) 76 FCR 389 Re Chase; Permfox Pty Ltd v Official Receiver for the Bankruptcy District of New South Wales [2002] FCA 1564 Re McLernon; ex parte SWF Hoists and Industrial Equipment Pty Ltd v Prebble (1995) 58 FCR 391 Sutherland v Brian (1999) 149 FLR 321
PARTIES:	George ELIAS (Appellant) Scott Darren PASCOE as trustee of the bankrupt Estate of Milad ELIAS (Respondent)
FILE NUMBER(S):	CA 40550/05
COUNSEL:	V R W GRAY (Appellant) B A J COLES, QC/ J M WHITE (Respondent)
SOLICITORS:	Strathfield Law (Appellant) Kemp Strang (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4851/03
LOWER COURT JUDICIAL OFFICER:	J C Gibson DCJ
LOWER COURT DATE OF DECISION:	06/06/2005

CA 40550/05
DC 4851/03

GILES JA
SANTOW JA
BRYSON JA

9 MAY 2006

George ELIAS v Scott Darren PASCOE as Trustee of the bankrupt Estate of Milad ELIAS

Judgment

1 GILES JA: Mr Milad Elias was made bankrupt on 18 November 2002. The respondent became the trustee of his bankrupt estate. On 13 July 2003 the Official Receiver gave to the appellant, a brother of Mr Milad Elias, a notice under s 139ZQ of the Bankruptcy Act 1966 (C’th) (“the Act”), requiring that the appellant pay to the respondent $70,561 as money received as a result of a transaction by Mr Milad Elias that was void against the respondent (“the Notice”). On 17 December 2003 the respondent brought proceedings against the appellant in the District Court claiming the $70,561. On 6 June 2005 J C Gibson DCJ ordered that there be summary judgment against the appellant for that sum. This is an application for leave to appeal from the judge’s decision, heard on full submissions as if an appeal.

2 In my opinion, the judge was in error in ordering summary judgment, first, because she refused an…