Helfenbaum v St George Bank Ltd

[2001] FCA 1736

FEDERAL COURT OF AUSTRALIA

Helfenbaum v St George Bank Ltd [2001] FCA 1736

JEFFREY LEON HELFENBAUM v ST GEORGE BANK LIMITED
V 140 OF 1999

SUNDBERG J
7 DECEMBER 2001
MEBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 140 OF 1999

BETWEEN:	JEFFREY LEON HELFENBAUM APPLICANT
AND:	ST GEORGE BANK LIMITED RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be struck out.

2.        The costs of the motion be paid by the applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 140 OF 1999

BETWEEN:	JEFFREY LEON HELFENBAUM APPLICANT
AND:	ST GEORGE BANK LIMITED RESPONDENT

JUDGE:	SUNDBERG J
DATE:	7 DECEMBER 2001
PLACE:	MELBOURNE

EX‑TEMPORE REASONS FOR JUDGMENT

1. The background facts are set out in my earlier judgment: St George Bank v Helfenbaum [1999] FCA 1337.

2. On 14 May 2001 a sequestration order was made against the applicant’s estate. On 27 July Mr Paul Pattison was appointed trustee of the estate. On or about 13 September the respondent’s solicitors gave the trustee notice pursuant to s 60(3) of the Bankruptcy Act 1966. The notice was in part as follows:

   “We have been instructed to hereby provide you with notice pursuant to section 60 of the Bankruptcy Act 1966 that our client, St George Bank Limited, is the respondent to an action instituted by Jeffrey Leon Helfenbaum (AKA Jeffrey Simon Helfenbaum) (the ‘Bankrupt’) in proceeding no V140/99 (074).

   Under section 60(3), you as the trustee, have 28 days to make an election in writing, to either prosecute or discontinue the action.  If you do not make an election within 28 days after this notice is served upon you, you will be deemed to have abandoned the action.

   Accordingly, we await your response.”

   The trustee sought and was granted an extension to 29 October in which to elect.  A request for a further extension was refused.

3. On 31 October the respondent’s solicitors wrote to the trustee noting that since no election had been made within the extended time by reason of s 60(3) he was deemed to have abandoned the action.

4. Section 60(3) provides that if the trustee does not elect within 28 days after notice of the action is served upon him, “he shall be deemed to have abandoned the action”. In view of this provision, and in the events that have happened, it is appropriate to grant the relief sought in the respondent’s motion, and to strike out the application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             7 December 2001

There was no appearance for the Applicant or the Applicant’s Trustee in Bankruptcy.
Counsel for the Respondent:	Marilyn Awad
Solicitor for the Respondent:	Rigby Cooke Lawyers
Date of Hearing:	7 December 2001
Date of Judgment:	7 December 2001