Kok v Commonwealth Development Bank [2004] NSWSC 51

Kok v Commonwealth Development Bank [2004] NSWSC 51

The plaintiff had no standing to prosecute the appeal because, after he commenced the proceedings, a sequestration order was made against his estate and the trustee elected to discontinue the proceedings. The proceedings attacked the Magistrate's refusal to set aside a default judgment and alleged procedural errors; they were not proceedings for personal injury, a wrong done to the bankrupt or his family, or death within Bankruptcy Act 1966 (Cth), s 60(4). Section 60(2) expressly applies to actions commenced by a person who subsequently becomes bankrupt.

Jurisdiction
Australia
Judgment Date
13 February 2004
Procedural Posture
Motion Challenging Locus Standi in Proceedings in the Common Law Division / Preliminary Issue of Standing in Plaintiff's Appeal From Refusal to Set Aside Default Judgment
Outcome
Defendant's motion succeeded; plaintiff held to have no standing; appeal dismissed with costs.
Legal Topics
['standing' 'locus Standi' 'effect of Bankruptcy on Pending Proceedings' 'trustee Election' 'appeal From Default Judgment']
['bankruptcy' 'civil Procedure'] ['standing' 'locus Standi' 'effect of Bankruptcy on Pending Proceedings' 'trustee Election' 'appeal From Default Judgment']

Case Brief

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Procedural Posture

Motion Challenging Locus Standi in Proceedings in the Common Law Division / Preliminary Issue of Standing in Plaintiff's Appeal From Refusal to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the plaintiff had standing to continue proceedings after a sequestration order was made against his estate.' 'Whether the exception in Bankruptcy Act 1966 (Cth), s 60(4) permitted the plaintiff to continue the proceedings in his own name.' "Whether the fact that the Supreme Court proceedings were commenced before the sequestration order preserved the plaintiff's standing."]

Ratio Decidendi

The plaintiff had no standing to prosecute the appeal because, after he commenced the proceedings, a sequestration order was made against his estate and the trustee elected to discontinue the proceedings. The proceedings attacked the Magistrate's refusal to set aside a default judgment and alleged procedural errors; they were not proceedings for personal injury, a wrong done to the bankrupt or his family, or death within Bankruptcy Act 1966 (Cth), s 60(4). Section 60(2) expressly applies to actions commenced by a person who subsequently becomes bankrupt.

Court Disposition

Defendant's motion succeeded; plaintiff held to have no standing; appeal dismissed with costs.

Orders

  • ["The defendant's application succeeds." 'The plaintiff has no standing to bring the proceedings.' 'The appeal is dismissed.' "The plaintiff is to pay the defendant's costs."]