Voskuilen v Morisset Mega Markets - [2005] NSWSC 34

CITATION:
Voskuilen v Morisset Mega Markets [2005] NSWSC 34

HEARING DATE(S): 02/02/05

JUDGMENT DATE :

2 February 2005

JUDGMENT OF:
Gzell J

DECISION:
Proceedings dismissed. Plaintiff ordered to pay defendant's costs of action and motion.

CATCHWORDS:
BANKRUPTCY - Proceedings in Connection with Sequestration - Plaintiff declared bankrupt - Official Trustee indicates will not take part in trial - Whether an election to discontinue - Whether Official Trustee deemed to have abandoned action under the Bankruptcy Act 1966 (Cth), s 60(3) - Whether defendant on motion to dismiss action should have an order for costs out of the bankrupt estate - Whether defendant should have an order for costs of action and motion against plaintiff

LEGISLATION CITED:
Retail Leases Act 1994
Bankruptcy Act 1966 (Cth)
Supreme Court Rules 1970

CASES CITED:
Cummings v Claremont Petroleum NL (1995-1996) 185 CLR 124
Cole v Challenge Bank Ltd [2002] FCAFC 200

PARTIES:
Harry Voskuilen - Plaintiff
Morisset Mega Market - Plaintiff

FILE NUMBER(S):
SC 1258/02

COUNSEL:
Plaintiff - No appearance
Defendant - Mr T W Marskell

SOLICITORS:
Clayton Utz Lawyers - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 2 FEBRUARY 2005

1258/02 HENRICUS GERARDUS VOSKUILEN v MORISSET MEGA-MARKET PTY LTD

EX TEMPORE JUDGMENT

1 The plaintiff in these proceedings, Henricus Gerardus Voskuilen, commenced proceedings against the defendant Morisset Mega-Market Pty Ltd in 2002.

2 The statement of claim alleged that Mega-Market had licensed to Mr Voskuilen stalls in its market and then refused him access to the stalls, contrary to the Retail Leases Act 1994. There was a claim for damages.

3 The matter was set down for trial before me, commencing today. On 24 September 2004, Mr Voskuilen was declared bankrupt. His estate then vested in the Official Trustee under the Bankruptcy Act 1966 (Cth), s 58. That included the cause of action in these proceedings (Cummings v Claremont Petroleum NL (1995-1996) 185 CLR 124).

4 The Bankruptcy Act 1966 (Cth), s 60(2) and s 60(3) are in the following terms:

“(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

5 The Official Trustee was informed of the proceedings and his attention drawn to those provisions by a letter from the solicitor for Mega-Market dated 29 October 2004. In a response of 2 November 2004, the Official Trustee acknowledged his understanding that the proceedings had been stayed in accordance with the Bankruptcy Act 1966 (Cth), s 60(2) and that he should make an election under s 60(3). No election was made in that letter.

6 The solicitors for Mega-Market wrote again on 22 December 2004 stating that since…

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.

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Details

Case: [2005] NSWSC 34
Decision Date: 2 February 2005

CaseChat Overview and Summary

Voskuilen, the plaintiff, sought to recover damages for breach of contract against Morisset Mega Markets, the defendant. The plaintiff was declared bankrupt, and the Official Trustee indicated that it would not take part in the trial. The primary legal issues in the case involved whether the Official Trustee's inaction constituted an election to discontinue the action and whether the defendant was entitled to an order for costs out of the bankrupt estate. Additionally, the court had to consider whether the defendant should have an order for costs of the action and the motion against the plaintiff.

The court held that the Official Trustee's decision not to participate in the trial did not constitute an election to discontinue the action. This was because the Trustee had not formally abandoned the action as required by section 60(3) of the Bankruptcy Act 1966 (Cth). The court further determined that the defendant was not entitled to an order for costs out of the bankrupt estate. In reaching this conclusion, the court noted that the defendant had not shown that the costs were necessary or reasonable in the circumstances of the case. Finally, the court found that the defendant should not have an order for costs of the action and the motion against the plaintiff, as the plaintiff had acted reasonably in defending the action.

Orders