Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 1648

Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 1648

The appeal and interlocutory applications should be dismissed because (1) all relevant causes of action or claims for relief had vested in the trustee in bankruptcy upon Mr Batterham's bankruptcy and did not re-vest in him on discharge, so he had no standing; (2) the applicant failed to raise any ground of appeal or application exposing arguable error by the primary Judge; and (3) the proposed claims were misconceived or doomed to fail and there are no prospects of success on appeal or merit in granting leave or an extension of time.

Parties
Appellant/applicant: Peter James Batterham; Respondent: Marcel Andre Nauer
Jurisdiction
Australia
Judgment Date
10 October 2019
Procedural Posture
Appeal and Interlocutory Application / Application for Summary Dismissal of Appeal and Application for Extension of Time/leave to Appeal
Outcome
Applications dismissed; Amended Notice of Appeal struck out; extension of time and leave to appeal refused; costs to follow the event.
Legal Topics
Summary Dismissal, Appeals, Bankruptcy Notice, Counter Claim, Set Off or Cross Demand, Extension of Time, Leave to Appeal
Practice and Procedure Bankruptcy Law Corporate Law Consumer Law Summary Dismissal Appeals Bankruptcy Notice Counter Claim, Set Off or Cross Demand +2 more

Case Brief

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Parties

Peter James Batterham

Appellant/applicant

Marcel Andre Nauer

Respondent

Procedural Posture

Appeal and Interlocutory Application / Application for Summary Dismissal of Appeal and Application for Extension of Time/leave to Appeal

Legal Issues

  1. 1 Whether the appeal from the refusal to set aside a Bankruptcy Notice has any prospect of success
  2. 2 Whether leave to appeal and extension of time should be granted in respect of an interlocutory decision summarily dismissing the proceeding
  3. 3 Whether any chose in action or claims for relief vested in the trustee in bankruptcy and were no longer available to the applicant

Ratio Decidendi

The appeal and interlocutory applications should be dismissed because (1) all relevant causes of action or claims for relief had vested in the trustee in bankruptcy upon Mr Batterham's bankruptcy and did not re-vest in him on discharge, so he had no standing; (2) the applicant failed to raise any ground of appeal or application exposing arguable error by the primary Judge; and (3) the proposed claims were misconceived or doomed to fail and there are no prospects of success on appeal or merit in granting leave or an extension of time.

Court Disposition

Applications dismissed; Amended Notice of Appeal struck out; extension of time and leave to appeal refused; costs to follow the event.

Orders

  • The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
  • Amended Notice of Appeal is struck out.