Commonwealth Bank of Australia v Shannon [2016] NSWSC 53

Commonwealth Bank of Australia v Shannon [2016] NSWSC 53

Because the first defendant was bankrupt and his trustee in bankruptcy had been appointed, the first defendant did not have standing or a right to be heard to pursue a strike out or summary dismissal application. However, the proceedings made serious allegations of personal misconduct affecting his character and reputation, so the Court should exercise a discretion to allow him a limited right to participate to answer those adverse allegations, with the terms of that participation to be determined after further submissions.

Jurisdiction
Australia
Judgment Date
11 February 2016
Procedural Posture
Application by First Defendant for Strike Out or Summary Dismissal of Proceedings Pursuant to UCPR Rules 13.4 and 14.28 or the Court's Inherent Jurisdiction, Alternatively for a Stay Pending Leave Under the Bankruptcy Act 1966 (cth). / Procedural Ruling on the First Defendant's Standing/locus Standi Following an Amended Notice of Motion Filed on 15 July 2015; Parties to Be Heard on Terms of Limited Participation, Remaining Matters, Remittal and Costs.
Outcome
The Court held that the first defendant had no standing by reason of his bankruptcy to seek strike out or summary dismissal, but should be given a limited right to participate in respect of adverse allegations of personal misconduct. Final orders were deferred pending further submissions.
Legal Topics
['locus Standi' 'strike Out' 'summary Dismissal' 'trustee in Bankruptcy' 'leave to Continue Proceedings' 'serious Allegations of Personal Misconduct' 'limited Right of Audience']
['civil Procedure' 'bankruptcy' 'common Law'] ['locus Standi' 'strike Out' 'summary Dismissal' 'trustee in Bankruptcy' 'leave to Continue Proceedings' 'serious Allegations of Personal Misconduct' 'limited Right of Audience']

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Procedural Posture

Application by First Defendant for Strike Out or Summary Dismissal of Proceedings Pursuant to UCPR Rules 13.4 and 14.28 or the Court's Inherent Jurisdiction, Alternatively for a Stay Pending Leave Under the Bankruptcy Act 1966 (cth). / Procedural Ruling on the First Defendant's Standing/locus Standi Following an Amended Notice of Motion Filed on 15 July 2015; Parties to Be Heard on Terms of Limited Participation, Remaining Matters, Remittal and Costs.

Legal Issues

  1. 1 ['Whether the first defendant, having been declared bankrupt and having a trustee in bankruptcy appointed, had standing to apply to strike out or summarily dismiss the proceedings.' 'Whether the Court should permit the bankrupt first defendant a limited right to participate in the proceedings to answer serious allegations of personal misconduct.' 'Whether leave was required under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) for the plaintiff to take fresh steps in and continue the proceedings.']

Ratio Decidendi

Because the first defendant was bankrupt and his trustee in bankruptcy had been appointed, the first defendant did not have standing or a right to be heard to pursue a strike out or summary dismissal application. However, the proceedings made serious allegations of personal misconduct affecting his character and reputation, so the Court should exercise a discretion to allow him a limited right to participate to answer those adverse allegations, with the terms of that participation to be determined after further submissions.

Court Disposition

The Court held that the first defendant had no standing by reason of his bankruptcy to seek strike out or summary dismissal, but should be given a limited right to participate in respect of adverse allegations of personal misconduct. Final orders were deferred pending further submissions.

Orders

  • ['Parties to be heard in relation to the terms for the grant of leave to the first defendant to participate in the proceedings in light of these reasons on the Amended Notice of Motion filed on 15 July 2015.' "Parties to be heard in relation to the disposition of any remaining matters arising on the first...