Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Hearing dates: 15 August 2011 Decision date: 09 September 2011 Before: Young JA Decision: Appeal and motion for leave to appeal dismissed with costs against Mr Savage.
[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: COSTS- appellant declared bankrupt after filing notice of appeal and summons seeking leave to appeal from District Court judgment- no election by trustee to prosecute or discontinue therefore deemed to be abandoned under s 60(3) Bankruptcy Act- application by respondent for appeal and leave to appeal to be dismissed, and appellant to pay costs personally as fixed by the Court- whether an appeal and application for leave to appeal are "actions" under s 60- whether an appeal and application for leave to appeal that are abandoned under s 60 can be dismissed- possibility of bankrupt re-litigating question once bankruptcy discharged not a consideration in this situation- appeal and application for leave to appeal dismissed- costs payable by appellant personally- whilst Court has power to fix costs, it declines in circumstances to so order. Legislation Cited: Bankruptcy Act 1966 (Cth), s 60
Civil Procedure Act 2005, s 98
District Court Act 1973, s 127Cases Cited: Arnoya Holdings Pty Ld v Metway Leasing Ltd [1999] NSWCA 120
Beach Petroleum NL v Johnson (No 2) (1995) 57 SCR 119
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Cole v Challenge Bank Ltd [2002] FCAFC 200
Cummings v Claremont Petroleum NL [1996] HCA 19; 185 CLR 124
Daemar v Industrial Commission of NSW (1988) 12 NSWLR 45
Foot v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52
Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 135; 44 ACSR 705
Hamod v State of NSW (No 13) [2009] NSWSC 756
Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738
Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Millane v President of the Shire of Heidelberg [1928] VLR 52
United Telephone Company v Bassano (1886) 31 Ch D 630
Voskuilen v Morisset Mega Markets [2005] NSWSC 34
Want v Moss (1889) 10 LR (NSW) 274Category: Procedural and other rulings Parties: Matthew Ronald Savage (Appellant)
Australian Unity Funds Management Ltd (Respondent)Representation: T Dinh (Applicant/Respondent)
No appearance for appellant
Allens Arthur Robinson (Applicant/Respondent)
File Number(s): CA 2011/44683
Judgment
YOUNG JA: The present matter arises out of an agreement for the development of a parcel of land in Orange, owned by a company…
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- Case
- [2011] NSWCA 270
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether an appeal and an application for leave to appeal constituted "actions" within the meaning of section 60(3) of the *Bankruptcy Act 1966* (Cth), and consequently, whether such proceedings, if deemed abandoned under that section, could be dismissed. The Court also considered whether the possibility of a bankrupt re-litigating the matter after discharge was a relevant factor.
The Court reasoned that an appeal and an application for leave to appeal were indeed "actions" for the purposes of section 60(3) of the *Bankruptcy Act*. As Mr Savage's trustee in bankruptcy had not elected to prosecute or discontinue these proceedings, they were deemed abandoned under the section. The Court held that abandoned actions could be dismissed. The Court further determined that the potential for the appellant to re-litigate the issues after his bankruptcy was discharged was not a consideration in the present application.
Consequently, the appeal and the application for leave to appeal were dismissed. Costs were awarded against Mr Savage personally. However, while the Court possessed the power to fix these costs, it declined to do so in the circumstances of the case.
Orders
Orders of the court
Appeal and motion for leave to appeal dismissed with costs against Mr Savage.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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