Singh v Khan [2021] NSWSC 1093

Singh v Khan [2021] NSWSC 1093

The proceedings were commenced before the plaintiff became bankrupt, and s 60(2) of the Bankruptcy Act 1966 (Cth) therefore stayed them automatically from the sequestration order dated 6 May 2021 until the trustees elected to prosecute or discontinue them. The automatic stay was not qualified by s 60(3), and in any event the trustees were notified by 14 July 2021 and did not elect within 28 days, so they were deemed to have abandoned the action. The Supreme Court of New South Wales had jurisdiction to determine the effect of s 60 on its proceedings, but not to determine the validity of the bankruptcy notice. The plaintiff consequently lacked standing to prosecute the proceedings or his...

Jurisdiction
Australia
Judgment Date
30 August 2021
Procedural Posture
Common Law Proceedings Concerning Notices of Motion for a Stay of Proceedings and Dismissal for Lack of Standing Following Bankruptcy / Hearing of Notices of Motion Filed on 23 July 2021 and 12 August 2021
Outcome
Proceedings declared stayed; plaintiff's notices of motion dismissed for lack of standing; provisional costs order made against the plaintiff.
Legal Topics
['stay of Proceedings Under S 60(2) of the Bankruptcy Act 1966 (cth)' "bankrupt Plaintiff's Standing to Prosecute Proceedings and Notices of Motion" 'jurisdiction of State Courts in Matters Arising Under the Bankruptcy Act 1966 (cth)' 'exclusive Federal Jurisdiction in Bankruptcy' 'validity of Bankruptcy Notice']
['civil Procedure' 'bankruptcy'] ['stay of Proceedings Under S 60(2) of the Bankruptcy Act 1966 (cth)' "bankrupt Plaintiff's Standing to Prosecute Proceedings and Notices of Motion" 'jurisdiction of State Courts in Matters Arising Under the Bankruptcy Act 1966 (cth)' 'exclusive Federal Jurisdiction in Bankruptcy' 'validity of Bankruptcy Notice']

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Procedural Posture

Common Law Proceedings Concerning Notices of Motion for a Stay of Proceedings and Dismissal for Lack of Standing Following Bankruptcy / Hearing of Notices of Motion Filed on 23 July 2021 and 12 August 2021

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales had jurisdiction to grant or declare a stay where the issue arose under the Bankruptcy Act 1966 (Cth).' "Whether the Court could determine the plaintiff's challenge to the validity of the bankruptcy notice." 'Whether s 60(2) of the Bankruptcy Act 1966 (Cth) automatically stayed proceedings commenced by the plaintiff before he became bankrupt.' 'Whether the plaintiff had standing to prosecute the proceedings or his notices of motion filed on 13 July 2021 and 12 August 2021 in his own name.']

Ratio Decidendi

The proceedings were commenced before the plaintiff became bankrupt, and s 60(2) of the Bankruptcy Act 1966 (Cth) therefore stayed them automatically from the sequestration order dated 6 May 2021 until the trustees elected to prosecute or discontinue them. The automatic stay was not qualified by s 60(3), and in any event the trustees were notified by 14 July 2021 and did not elect within 28 days, so they were deemed to have abandoned the action. The Supreme Court of New South Wales had jurisdiction to determine the effect of s 60 on its proceedings, but not to determine the validity of the bankruptcy notice. The plaintiff consequently lacked standing to prosecute the proceedings or his...

Court Disposition

Proceedings declared stayed; plaintiff's notices of motion dismissed for lack of standing; provisional costs order made against the plaintiff.

Orders

  • ['Declare that the proceedings are stayed by reason of the operation of s 60(2) of the Bankruptcy Act 1966 (Cth).' '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...