Murdaca v RAMS Mortgage Corporation Ltd - [2007] NSWSC 512

CITATION: Murdaca v RAMS Mortgage Corporation Ltd [2007] NSWSC 512

HEARING DATE(S): 15/05/07

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 15 May 2007

DECISION: Order that proceedings be stayed perpetually and that the plaintiff pay the defendant's costs.

CATCHWORDS: BANKRUPTCY [205]- Proceedings commenced by bankrupt before sequestration- Effect of bankruptcy on proceedings- Trustee did not elect to prosecute action- Whether bankrupt may continue proceedings in his own name- Whether action is in respect of any personal injury or wrong done to the bankrupt- Held a claim that is connected with or that is consequential to a property claim is not a personal injury claim for the purposes of s 60(4) of the Bankruptcy Act 1966 (Cth).

LEGISLATION CITED: Bankruptcy Act 1966 (Cth), s 60
Civil Liability Act 2002, s 27

CASES CITED: Bendigo Bank Ltd v Demaria [2001] VSC 218
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Cox v Journeaux (No 2) (1935) 52 CLR 713
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Faulkner v Bluett (1981) 52 FLR 115
King v Commercial Bank of Australia Ltd [1921] VLR 48
Mannigel v Hewlett Phelps (C/A, 12.6.1991, unreported) BC9101907
Millane v Shire of Heidelberg [1928] VLR 52
Wilson v United Counties Bank Ltd [1920] AC 102

PARTIES: Anthony Murdaca (P)
RAMS Mortgage Corporation Ltd (D)

FILE NUMBER(S): SC 6817/04

COUNSEL: Plaintiff in person
M Ashhurst (D)

SOLICITORS: Plaintiff in Person
Kemp Strang (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 15 May 2007

6817/04 – MURDACA v RAMS MORTGAGE CORPORATION LTD

JUDGMENT

1 HIS HONOUR: The plaintiff, who has appeared in person, sues the defendant for four matters which can be put under two heads. First, that in its conduct of proceedings in the Common Law division of this court relating to possession of property in which the plaintiff was the mortgagor and the defendant the mortgagee, the defendant acted negligently, carelessly and unskilfully, in particular (a) it did not properly serve him with process and (b) that it reneged on an agreement it made that it would allow him to market the properties.

2 Secondly, he sues in respect of the mortgagee’s accounts over that property saying that the defendant (a) failed to consult him about the marketing of the property and (b) negligently and unskilfully and in breach of fiduciary duty marketed the property so that a considerable loss was made and the proper value was not obtained.

3 Mr Murdaca filed his statement of claim and it has been amended twice and I will refer to the further amended statement of claim filed on 21 April 2005. Directions were made by an Associate Justice as to getting that claim ready. Mr Murdaca complains that whilst he has put his affidavits on and complied with the directions the defendant has failed to do so. I understand from the way in which Mr Ashhurst of counsel, who appears…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 512
Decision Date: 15 May 2007

CaseChat Overview and Summary

The case of Murdaca v RAMS Mortgage Corporation Ltd involved the appellant, a bankrupt, who commenced legal proceedings against the respondent, a mortgage corporation, prior to his sequestration. The central dispute in this matter was whether the bankrupt could continue to prosecute the action in his own name after his bankruptcy, given that the trustee in bankruptcy had not elected to take over the proceedings. A further issue was whether the nature of the claim allowed the bankrupt to continue with the proceedings under section 60(4) of the Bankruptcy Act 1966 (Cth), which permits a bankrupt to continue an action if it concerns a personal injury or wrong done to the bankrupt.

The court considered whether the claim was connected to or consequential upon a property claim, as this would determine if it was a personal injury claim within the meaning of section 60(4) of the Act. The court found that a claim related to a property dispute does not constitute a personal injury claim for the purposes of that section. Therefore, the bankrupt was not permitted to continue with the proceedings in his own name following his bankruptcy, as the claim did not meet the criteria for continuation under the Act.

The decision of the court was that the bankrupt could not continue the legal action in his own name after sequestration, as the claim was not a personal injury claim within the meaning of section 60(4) of the Bankruptcy Act 1966 (Cth). The appeal was dismissed, affirming that the bankrupt was not entitled to prosecute the claim independently of the trustee in bankruptcy.

The final orders of the court were that the appeal was dismissed and that the bankrupt was not permitted to continue the legal proceedings in his own name. The matter was to be referred back to the trustee in bankruptcy for any further action.

Orders