Shannon v Commonwealth Bank of Australia [No. 2]

Supreme Court

New South Wales

Medium Neutral Citation: Shannon v Commonwealth Bank of Australia [No. 2] [2013] NSWSC 602
Hearing dates: 16 May 2013
Decision date: 16 May 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
1. The proceedings are dismissed;
2. I order that the plaintiff pay the costs of and incidental to the proceedings up to and including 18 February 2013.

Catchwords: PRACTICE AND PROCEDURE - plaintiff became bankrupt after decision reserved in primary proceedings - proceedings previously stayed until trustee in bankruptcy made election to prosecute or discontinue the action pursuant to s 60(2) Bankruptcy Act 1966 (Cth) - no election made within 28 days after notice of the action served upon trustee as required by s60(3) Bankruptcy Act - trustee deemed to have abandoned action - proceedings dismissed
Legislation Cited: Bankruptcy Act 1966 (Cth)
Category: Procedural and other rulings
Parties: Linda Shannon (Plaintiff)
Commonwealth Bank of Australia (Defendant)
Representation: Counsel:
No appearance (Plaintiff)
N. Minassian, solicitor (Defendant)
Solicitors:
Platinum Lawyers (Plaintiff)
Gadens Lawyers (Defendant)

File Number(s): 2012/283241

Judgment

On 11 April 2013 I made a declaration to the effect that the present proceedings are stayed by force of s 60(2) of the Bankruptcy Act 1966 (Cth). The matter was stood over for further mention before me today. When the matter was called Ms Minassian, solicitor, appeared for the defendant but there was no appearance either for the plaintiff or for her trustee in bankruptcy. The plaintiff's name was called outside the court three times in accordance with custom and there was still no appearance.

I gave Ms Minassian leave to file in court, and read, her affidavit sworn today. That affidavit, amongst other things, annexes her letter to the trustee in bankruptcy dated 11 April 2013 which I am satisfied, on the basis of her evidence, was duly sent by express post. In that regard I refer to the sticker appearing on annexure C to Ms Minassian's affidavit.

I am now satisfied that the trustee in bankruptcy has had adequate notice of these proceedings in accordance with subsection (3) of s60 of the Bankruptcy Act and has failed to make an election in writing as required by subs(2) to either prosecute or discontinue the action. I am satisfied in accordance with subsection (3) that the trustee is deemed to have abandoned the action.

I make the following orders:

(1) The proceedings are dismissed.

(2) I order that the plaintiff pay the costs of and incidental to the proceedings up to and including 18 February 2013.

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CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff, Shannon, and the Commonwealth Bank of Australia. Shannon had initiated legal proceedings against the bank, but subsequently became bankrupt. The matter was stayed pending an election by the trustee in bankruptcy, as required under section 60(2) of the Bankruptcy Act 1966 (Cth), to either prosecute or discontinue the action. The trustee did not make an election within the required 28 days after notice of the action was served, as mandated by section 60(3) of the Act. Consequently, the trustee was deemed to have abandoned the action, leading to the dismissal of the proceedings.

The court was tasked with determining whether the failure of the trustee in bankruptcy to make an election within the statutory timeframe resulted in the abandonment of the plaintiff's action. The primary legal issue was whether the procedural requirements of section 60(3) of the Bankruptcy Act were met, and if not, what the consequences were for the plaintiff's case. The court had to interpret the statutory language and consider whether the trustee's inaction constituted an abandonment of the action.

In addressing the issue, the court held that the trustee's failure to make an election within the specified period resulted in the automatic abandonment of the plaintiff's action, as per the plain language of section 60(3) of the Bankruptcy Act. The court found that the statutory requirements were clear and mandatory, and the trustee's non-compliance led to the dismissal of the proceedings. The court's decision emphasised the importance of strict adherence to the procedural rules outlined in the Bankruptcy Act.

The final outcome was that the proceedings were dismissed due to the trustee in bankruptcy's failure to make an election within the required timeframe. The court's decision reinforced the principle that the statutory provisions of the Bankruptcy Act must be strictly followed, and any non-compliance can result in significant consequences for the plaintiff's case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Shannon v Commonwealth Bank of Australia [No. 2] [2013] NSWSC 602
Hearing dates:	16 May 2013
Decision date:	16 May 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	1. The proceedings are dismissed; 2. I order that the plaintiff pay the costs of and incidental to the proceedings up to and including 18 February 2013.
Catchwords:	PRACTICE AND PROCEDURE - plaintiff became bankrupt after decision reserved in primary proceedings - proceedings previously stayed until trustee in bankruptcy made election to prosecute or discontinue the action pursuant to s 60(2) Bankruptcy Act 1966 (Cth) - no election made within 28 days after notice of the action served upon trustee as required by s60(3) Bankruptcy Act - trustee deemed to have abandoned action - proceedings dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth)
Category:	Procedural and other rulings
Parties:	Linda Shannon (Plaintiff) Commonwealth Bank of Australia (Defendant)
Representation:	Counsel: No appearance (Plaintiff) N. Minassian, solicitor (Defendant) Solicitors: Platinum Lawyers (Plaintiff) Gadens Lawyers (Defendant)
File Number(s):	2012/283241