BAKER v SHERIDAN & ANOR [2005] NSWCA 408

BAKER v SHERIDAN & ANOR [2005] NSWCA 408

The assignment by the Official Trustee to Ms Alexander and communication thereof constituted an election under s60 of the Bankruptcy Act to prosecute the appeal by and through the assignee; however, given Ms Alexander's inability to provide security for costs, her application for substitution and continuation of the appeal must be dismissed as a futility since no security can be given.

Jurisdiction
Australia
Judgment Date
23 November 2005
Procedural Posture
Civil Appeal / Interlocutory Application Before Hearing of Appeal; Application for Substitution of Party and Dismissal Motions
Outcome
Application for substitution refused; appeal and cross-appeal to be dismissed
Legal Topics
['assignment of Bankrupt Estate Rights' 'substitution of Parties' 'security for Costs' 'bankruptcy Act S60' 'impecunious Litigants' 'dismissal for Non Prosecution']
['bankruptcy Law' 'procedure' 'civil Appeals'] ['assignment of Bankrupt Estate Rights' 'substitution of Parties' 'security for Costs' 'bankruptcy Act S60' 'impecunious Litigants' 'dismissal for Non Prosecution']

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Procedural Posture

Civil Appeal / Interlocutory Application Before Hearing of Appeal; Application for Substitution of Party and Dismissal Motions

Legal Issues

  1. 1 ["Whether assignee of bankrupt appellant's rights may be substituted as appellant under s60 of the Bankruptcy Act and Supreme Court Rules" "Whether the trustee's right to prosecute an appeal is assignable" 'Effect of assignment and election under Bankruptcy Act s60' 'Appropriateness of ordering security for costs against impecunious assignee' 'Whether appeal should be dismissed for non-prosecution']

Ratio Decidendi

The assignment by the Official Trustee to Ms Alexander and communication thereof constituted an election under s60 of the Bankruptcy Act to prosecute the appeal by and through the assignee; however, given Ms Alexander's inability to provide security for costs, her application for substitution and continuation of the appeal must be dismissed as a futility since no security can be given.

Court Disposition

Application for substitution refused; appeal and cross-appeal to be dismissed

Orders

  • ['Motions adjourned to 2 December 2005 for formal orders' 'Intention foreshadowed: Application by Ms Alexander to be dismissed with no order as to costs' 'Appeal and cross-appeal to be dismissed' 'No order as to costs against Ms Alexander' 'Liberty reserved to moving respondents to seek an order as to costs against...