Supreme Court
New South Wales
Medium Neutral Citation: Singh v Khan [2021] NSWSC 1093 Hearing dates: 26 August 2021 Decision date: 30 August 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Declare that the proceedings are stayed by reason of the operation of s 60(2) of the Bankruptcy Act 1966 (Cth).
(2) Declare that the plaintiff had no standing to file, and has no standing to move on, the notices of motion filed by him on 13 July 2021 and 12 August 2021 respectively and dismiss the notices of motion accordingly.
(3) Subject to any party making an application for a different order, order the plaintiff to pay the defendants’ costs of the notices of motion filed by the plaintiff on 13 July 2021 and 12 August 2021 and of the defendants’ notice of motion filed on 23 July 2021.
Catchwords: CIVIL PROCEDURE – Defendants seeking stay of proceedings by reason of s 60(2) of the Bankruptcy Act 1966 (Cth) and dismissal of plaintiff’s notice of motion as he lacks standing — Plaintiff seeking review of Registrar’s directions to list defendants’ notice of motion prior to determination of his earlier notice of motion — Plaintiff’s notices of motion dismissed as per the Bankruptcy Act 1966 (Cth) as he does not have standing to prosecute them in his own name – declaration of stay
BANKRUPTCY — Exclusive jurisdiction of federal courts “in bankruptcy” — Jurisdiction of State courts conferred under s 39(2) of the Bankruptcy Act 1966 (Cth) to determine matters arising under the Act other than those falling within the Federal Court’s exclusive jurisdiction — effect of s 60 of the Bankruptcy Act 1966 (Cth) on proceedings in this Court does not require the exercise of jurisdiction “in bankruptcy” — this Court has no jurisdiction to determine the validity of a bankruptcy notice as it is a matter “in bankruptcy” — by operation of ss 60(2) and (3) of the Bankruptcy Act 1966 (Cth) the plaintiff does not have standing to prosecute these proceedings or notices of motion in his own name
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 5, 27, 35, 35A, 40, 58, 60, 116
Civil and Administrative Tribunal Act 2013 (NSW), s 60
Constitution, ss 75, 76
Judiciary Act 1903 (Cth), ss 39, 39B
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 3
Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 71
Uniform Civil Procedure Rules 2005 (NSW), rr 13.6, 36.10
Cases Cited: Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1
Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343
Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886
Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14
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CaseChat Overview and Summary
The central legal issues revolved around the plaintiff's standing to bring the proceedings in his own name and whether the court had jurisdiction to determine the validity of a bankruptcy notice. The court considered the provisions of section 60 of the Bankruptcy Act 1966 (Cth), which confers exclusive jurisdiction to the Federal Court in matters "in bankruptcy" and provides that a person other than the Official Receiver or the trustee cannot commence or prosecute proceedings in their own name. The court also had to interpret the effect of section 60 on proceedings in the Federal Circuit Court and whether it required the exercise of jurisdiction "in bankruptcy."
The court found that, by virtue of sections 60(2) and (3) of the Bankruptcy Act 1966 (Cth), the plaintiff did not have standing to prosecute the proceedings or notices of motion in his own name. The court held that the validity of a bankruptcy notice was a matter "in bankruptcy," and as such, the Federal Circuit Court did not have jurisdiction to determine it. Consequently, the plaintiff's notices of motion were dismissed. The court further granted the defendants' application for a stay of proceedings.
The court's final orders included the dismissal of the plaintiff's notices of motion and a declaration that the proceedings be stayed. The court ruled that the plaintiff lacked standing to prosecute the proceedings in his own name and that the court did not have jurisdiction to determine the validity of a bankruptcy notice. The defendants' application for a stay of proceedings was granted, and the plaintiff's claims were dismissed.
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