FEDERAL COURT OF AUSTRALIA
Tyne v UBS AG (No 4) [2017] FCA 374
File number: QUD 10 of 2014 Judge: GREENWOOD J Date of judgment: 11 April 2017 Catchwords: BANKRUPTCY AND INSOLVENCY – consideration of the orders to be made as a result of an action being deemed to have been abandoned by operation of s 60(3) of the Bankruptcy Act 1966 (Cth) by reason of the Trustee of the estate of the Second Applicant not having made an election to prosecute the action within 28 days after notice of the action from the Respondent – consideration of the costs orders to be made Legislation: Bankruptcy Act 1966 (Cth), ss 5(1), 58(1), 60(2), 60(3), 116(1) Cases cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Cole v Challenge Bank Limited [2012] FCAFC 200
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Gore v Prentice (Trustee), in the matter of the Personal Insolvency Agreement of Gore [2012] FCA 660
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Date of hearing: 10 April 2017 Date of last submissions: 10 April 2017 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 24 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant did not appear Counsel for the Respondent: Mr L Livingston Solicitors for the Respondent: King & Wood Mallesons ORDERS
QUD 10 of 2014 BETWEEN: SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST
First Applicant
CLARE ELIZABETH MARKS
Second Applicant
AND: UBS AG
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
11 APRIL 2017
THE COURT NOTES THAT:
1.The Second Applicant, Clare Elizabeth Marks, became bankrupt on 11 June 2014.
2.The Trustee of the Second Applicant’s bankrupt estate was notified of these proceedings on 8 March 2017 by the Respondent pursuant to Section 60(3) of the Bankruptcy Act 1966 (Cth).
3.The Trustee of the Second Applicant’s bankrupt estate did not make an election within the 28 day period referred to in Section 60(3) of the Bankruptcy Act 1966 (Cth) and has confirmed by letter dated 6 April 2017 addressed to the Federal Court of Australia, and confirmed to the parties, that the time for making the election under Section 60(3) has expired and that, in consequence, the proceedings in the name of Clare Elizabeth Marks are deemed to have been abandoned.
4.Neither the Trustee nor the Second Applicant appeared before the Court.
THE COURT ORDERS THAT:
1.The proceeding brought by the Second Applicant against the Respondent is dismissed.
2.The Second Applicant pay the Respondent’s costs of and incidental to her proceeding.
3.The First Applicant pay the Respondent’s costs of and incidental to the case management hearings on 17 March 2017 and 10 April 2017 on an indemnity…
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- AGLC
- Tyne v UBS AG (No 4) [2017] FCA 374
- Case
- [2017] FCA 374
- Decision Date
CaseChat Overview and Summary
The court considered the implications of the abandonment of the action and the subsequent need to make appropriate orders. It held that since the second applicant had not elected to prosecute the action within the required timeframe, the proceeding should be dismissed. The court also assessed the costs that should be awarded to the respondent and ordered the second applicant to pay the respondent’s costs of and incidental to the proceeding. Additionally, the first applicant was ordered to pay the respondent’s costs of and incidental to the case management hearings on specified dates on an indemnity basis.
The court further directed that the respondent must notify the first applicant by a specified date whether it opposed the grant of leave to file a further amended statement of claim. The proceedings were listed for further case management, and the parties were granted liberty to apply for further orders within a specified period. The court's decision provided clarity on the consequences of the abandonment of the action and outlined the procedural steps to be followed by the parties moving forward.
The final orders included the dismissal of the proceeding brought by the second applicant against the respondent, the payment of costs by both applicants to the respondent, a notification requirement for the respondent regarding the further amended statement of claim, and scheduling for further case management. The court also allowed the parties to apply for further orders with appropriate notice.
Orders
Orders of the court
1. The proceeding brought by the Second Applicant against the Respondent is dismissed.
2. The Second Applicant pay the Respondent’s costs of and incidental to her proceeding.
3. The First Applicant pay the Respondent’s costs of and incidental to the case management hearings on 17 March 2017 and 10 April 2017 on an indemnity basis.
4. The Respondent is to notify the First Applicant by 8 May 2017 whether it opposes the grant of leave to file the further amended statement of claim.
5. The proceedings be listed for further case management on 15 May 2017.
6. The parties have liberty to apply on 48 hours’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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