Goodman v Westpac Banking Corporation

[2011] FCA 1327

FEDERAL COURT OF AUSTRALIA

Goodman v Westpac Banking Corporation [2011] FCA 1327

Citation:		Goodman v Westpac Banking Corporation [2011] FCA 1327
Parties:		MORRIS GOODMAN and GRETA GOODMAN v WESTPAC BANKING CORPORATION (ABN 033 007 457 141)
File number:		VID 984 of 2010
Judge:		BROMBERG J
Date of judgment:		16 November 2011
Legislation:		Bankruptcy Act 1966 (Cth) s 60
Date of hearing:	16 November 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Counsel for the Applicants:	The Applicants did not appear
Counsel for the Respondent:	Mr C Nichol
Solicitor for the Respondent:	Gadens Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 984 of 2010

BETWEEN:

MORRIS GOODMAN
First Applicant

GRETA GOODMAN
Second Applicant

AND:

WESTPAC BANKING CORPORATION (ABN 033 007 457 141)
Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	16 NOVEMBER 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Application of the first applicant dated 17 November 2010 be dismissed.

2.The title of the proceeding be amended to remove Morris Goodman as the first applicant.

3.Any application by the second applicant for leave to amend her Application be filed and served on or before 20 January 2012 together with a supporting affidavit which exhibits the proposed Amended Application.

4.Any affidavit in opposition to the grant of leave be filed and served by the respondent on or before 27 January 2012.

5.The proceeding be adjourned to a Directions Hearing at 9.30am on 3 February 2012, including for the purpose of considering whether the Court should permit the second applicant to be represented by a tutor or a Mackenzie friend and, if so, who should represent the second applicant.

6.The respondent’s costs of the Directions Hearing be paid by the second applicant.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 984 of 2010

BETWEEN:

MORRIS GOODMAN
First Applicant

GRETA GOODMAN
Second Applicant

AND:

WESTPAC BANKING CORPORATION (ABN 033 007 457 141)
Respondent

JUDGE:	BROMBERG J
DATE:	16 NOVEMBER 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Application before the Court was made on 17 November 2010 by Morris Goodman who is the first applicant and Greta Goodman, the second applicant. 

2. On 17 December 2010 the first applicant Mr Goodman was declared a bankrupt and Mr Warren B White was appointed trustee of Mr Goodman’s estate. Section 60(2) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) provides that an action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes an election in writing to prosecute or discontinue the action. Section 60(3) is in the following terms:

   If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action he or she shall be deemed to have abandoned the action.

3. I am satisfied that notice of this proceeding has been provided to Mr Goodman’s Trustee. I am also satisfied that the Trustee has not made an election pursuant to s 60(3) of the Bankruptcy Act. Accordingly, by operation of that provision it is deemed Mr Goodman has abandoned his action. In the circumstances it is appropriate that orders be made which I intend to now make to dismiss the application of the first applicant and for the title of the proceeding to be amended accordingly. I will also make orders dealing with the further disposition of the application of Ms Goodman.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        21 November 2011