Boensch v Somerville Legal Pty Ltd [2020] FCA 645

Boensch v Somerville Legal Pty Ltd [2020] FCA 645

The extension of time and leave to appeal application was an action commenced before the appellant became bankrupt. Notice of the action was served on the Trustees on 12 December 2019 and the Trustees did not elect within 28 days to prosecute or discontinue it, so it was deemed abandoned under s 60(3) of the Bankruptcy Act 1966 (Cth). The s 60(4) exception did not apply because the application challenged a costs order and findings about service and an act of bankruptcy, and was not an action in respect of personal injury or a wrong done to the bankrupt within the relevant meaning. In the bankruptcy appeal, the Trustees' only interest was to protect their position as to costs if the...

Jurisdiction
Australia
Judgment Date
14 May 2020
Procedural Posture
Bankruptcy Appeal and Application for Extension of Time and Leave to Appeal / Preliminary Determination on the Papers as to Standing Under S 60 of the Bankruptcy Act 1966 (cth) and Intervention of the Trustees in Bankruptcy
Outcome
In NSD 2048 of 2019 the extension of time and leave to appeal application was deemed abandoned and the proceedings were discontinued. In NSD 2088 of 2019 the Trustees in Bankruptcy were granted leave to intervene for the limited purpose of making submissions as to appropriate orders, should the appellant succeed, to...
Legal Topics
['sequestration Order' 'standing of Bankrupt to Continue Proceedings' 'stay and Abandonment of Civil Proceedings Under S 60 of the Bankruptcy Act 1966 (cth)' 'intervention by Trustees in Bankruptcy' 'extension of Time and Leave to Appeal']
['practice and Procedure' 'bankruptcy and Insolvency' 'appeals'] ['sequestration Order' 'standing of Bankrupt to Continue Proceedings' 'stay and Abandonment of Civil Proceedings Under S 60 of the Bankruptcy Act 1966 (cth)' 'intervention by Trustees in Bankruptcy' 'extension of Time and Leave to Appeal']

Case Brief

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Procedural Posture

Bankruptcy Appeal and Application for Extension of Time and Leave to Appeal / Preliminary Determination on the Papers as to Standing Under S 60 of the Bankruptcy Act 1966 (cth) and Intervention of the Trustees in Bankruptcy

Legal Issues

  1. 1 ['Whether, by reason of s 60 of the Bankruptcy Act 1966 (Cth), the appellant had standing to bring the extension of time and leave to appeal application after a sequestration order was made against his estate.' 'Whether the application for an extension of time and leave to appeal was deemed abandoned under s 60(3) of the Bankruptcy Act 1966 (Cth) because the Trustees in Bankruptcy did not elect to prosecute it.' 'Whether the exception in s 60(4) of the Bankruptcy Act 1966 (Cth) for an action in respect of personal injury or wrong done to the bankrupt applied.' 'Whether the Trustees in Bankruptcy should be joined or permitted to intervene in the bankruptcy appeal to protect their position as to costs.']

Ratio Decidendi

The extension of time and leave to appeal application was an action commenced before the appellant became bankrupt. Notice of the action was served on the Trustees on 12 December 2019 and the Trustees did not elect within 28 days to prosecute or discontinue it, so it was deemed abandoned under s 60(3) of the Bankruptcy Act 1966 (Cth). The s 60(4) exception did not apply because the application challenged a costs order and findings about service and an act of bankruptcy, and was not an action in respect of personal injury or a wrong done to the bankrupt within the relevant meaning. In the bankruptcy appeal, the Trustees' only interest was to protect their position as to costs if the...

Court Disposition

In NSD 2048 of 2019 the extension of time and leave to appeal application was deemed abandoned and the proceedings were discontinued. In NSD 2088 of 2019 the Trustees in Bankruptcy were granted leave to intervene for the limited purpose of making submissions as to appropriate orders, should the appellant succeed, to...

Orders

  • ['NSD 2088 of 2019: Leave is granted for the Trustees in Bankruptcy to intervene in this matter.' 'NSD 2048 of 2019: The matter has been abandoned.']