Sarkis v Moussa

[2012] NSWCA 136

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sarkis v Moussa [2012] NSWCA 136

Hearing dates:

19 March, 27 March 2012

Decision date:

14 May 2012

Before:

Beazley JA

Decision:

Summons seeking leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

BANKRUPTCY - Summons seeking leave to appeal - Bankrupt applicant - Effect of bankruptcy on proceedings - Proceedings commenced by bankrupt before sequestration - "Action" stayed until trustee makes election - Whether summons seeking leave to appeal is "property" within meaning of s 58 - Whether summons seeking leave to appeal is an "action" within the meaning of s 60 - Whether the trustee made an election to prosecute or discontinue the "action" - Bankruptcy Act 1966 (Cth), ss 58 and 60

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Local Court Act 2007
Uniform Civil Procedure Rules 2005

Cases Cited:

Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600
Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281
Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100
Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Doran v Isaacs (1912) 12 SR NSW 699
Griffiths v Civil Aviation Authority [1996] FCA 1502; (1996) 137 ALR 521
Hill v Smithfield Service Centre [2002] NSWSC 999; 196 ALR 246
Lawindi v Elkateb [2001] NSWSC 865
United Telephone Company v Bassano [1886] 31 Ch D 630
Want v Moss (1889) 10 LR (NSW) 274

Category:

Principal judgment

Parties:

Toufic Laba Sarkis (Applicant)
Mahmoud Moussa (Respondent)

Representation:

Counsel:
P E King (Applicant)
M Rollinson (Respondent)
Solicitors:
George Khoury & Co (Applicant)
Benjamin & Khoury (Respondent)

File Number(s):

CA 2010/292546

 Decision under appeal 

Citation:

Toufic Laba Sarkis v Mahmoud Moussa [2011] NSWSC 1172

Date of Decision:

2011-09-30 00:00:00

Before:

Latham J

File Number(s):

2010/292546

Judgment

1. HER HONOUR: By notice of motion filed on 13 March 2012, Mr Mahmoud Moussa sought an order that a summons, brought by Mr Toufic Laba Sarkis, seeking leave to appeal from orders made by Latham J on 30 September 2011 be dismissed. The notice of motion sought alternatively that the summons seeking leave to appeal be stayed permanently or until further order. The notice of motion was said to be brought pursuant to the Civil Procedure Act 2005, ss 56, 61 and 67, the Uniform Civil Procedure Rules 2005 (UCPR), rr 12.7, 13.4 and 51.1, and the inherent power of the court.

1. The underlying basis for the orders sought in the…