Savage v Australian Unity Funds Management Ltd

In *Savage v Australian Unity Funds Management Ltd*, the appellant, Mr Savage, sought leave to appeal a District Court judgment. Following the filing of his notice of appeal and summons seeking leave, Mr Savage was declared bankrupt. The respondent applied for the appeal and application for leave to appeal to be dismissed, and for Mr Savage to pay the costs personally.

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.