Constantine v The Official Trustee in Bankruptcy, in the matter of the Bankrupt Estate of Basil Charles Sanders [2007] FCA 564

Constantine v The Official Trustee in Bankruptcy, in the matter of the Bankrupt Estate of Basil Charles Sanders [2007] FCA 564

It is appropriate to grant Ms Constantine leave to continue the Supreme Court proceeding against Mr Sanders, to the extent necessary, as any prejudice claimed by Mr Sanders relates to the bankruptcy itself rather than the leave application, and thus no prejudice is suffered by granting leave.

Jurisdiction
Australia
Judgment Date
05 April 2007
Procedural Posture
Application Under S 58(3)(b) Bankruptcy Act 1966 (cth) for Leave to Continue Supreme Court Proceedings / Interlocutory Application; Urgent Hearing Before Duty Judge
Outcome
Leave granted to file application and supporting affidavit; leave granted under s 58(3)(b) Bankruptcy Act to commence or continue Supreme Court Possession List Proceedings to the extent necessary
Legal Topics
['leave to Continue Proceedings' 'possession of Leased Premises' 'effect of Bankruptcy on Litigation']
['bankruptcy' 'property Law'] ['leave to Continue Proceedings' 'possession of Leased Premises' 'effect of Bankruptcy on Litigation']

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Procedural Posture

Application Under S 58(3)(b) Bankruptcy Act 1966 (cth) for Leave to Continue Supreme Court Proceedings / Interlocutory Application; Urgent Hearing Before Duty Judge

Legal Issues

  1. 1 ['Whether the applicant should be granted leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to continue Supreme Court Possession List Proceedings against the bankrupt' 'Whether there is any prejudice to the bankrupt in granting leave']

Ratio Decidendi

It is appropriate to grant Ms Constantine leave to continue the Supreme Court proceeding against Mr Sanders, to the extent necessary, as any prejudice claimed by Mr Sanders relates to the bankruptcy itself rather than the leave application, and thus no prejudice is suffered by granting leave.

Court Disposition

Leave granted to file application and supporting affidavit; leave granted under s 58(3)(b) Bankruptcy Act to commence or continue Supreme Court Possession List Proceedings to the extent necessary

Orders

  • ['The applicant has leave to file in Court the Form of Application and supporting affidavit upon undertaking to pay the filing fee.' 'The Application be returnable instanter.' 'To the extent that it may be necessary, the applicant have leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) nunc pro tunc to commence...