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Singh v Khan

Singh v Khan

Case [2021] NSWSC 1093 30 August 2021

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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
Truthful Endeavour Pty Ltd v Condon

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v Khan

Details

AGLC: Singh v Khan [2021] NSWSC 1093
Case: [2021] NSWSC 1093
Decision Date: 30 August 2021

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Singh, the plaintiff, sought a review of the Registrar's directions to list the defendants' notice of motion ahead of the determination of his earlier notice of motion. The defendants, Khan, argued for a stay of proceedings pursuant to section 60(2) of the Bankruptcy Act 1966 (Cth) and sought dismissal of the plaintiff's notices of motion as he lacked standing. The court had to determine whether the plaintiff had the requisite standing to prosecute the proceedings and notices of motion in his own name and whether the court had jurisdiction to consider the validity of a bankruptcy notice.

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.

Orders