Sarkis v Moussa [2013] FCA 373

Sarkis v Moussa [2013] FCA 373

Mr Sarkis failed to discharge the onus to demonstrate that justice and equity demanded intervention under s178; the trustee’s decision not to prosecute the leave application was reasonable, based on lack of evidence of prospects and funding, and the Federal Magistrate did not err in refusing the adjournment or in other respects.

Jurisdiction
Australia
Judgment Date
24 April 2013
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
['control of Trustees' "trustee's Discretion" "appeal Against Trustee's Decision" "prosecution or Discontinuance of Bankrupt's Proceedings" 'just and Equitable Orders']
['bankruptcy and Insolvency'] ['control of Trustees' "trustee's Discretion" "appeal Against Trustee's Decision" "prosecution or Discontinuance of Bankrupt's Proceedings" 'just and Equitable Orders']

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the Federal Magistrate erred in refusing an adjournment' "Whether it was just and equitable to make orders reviewing the trustee's decision under s178 of the Bankruptcy Act" 'Whether the trustee’s decision not to prosecute the bankrupt’s application for leave to appeal was appropriate']

Ratio Decidendi

Mr Sarkis failed to discharge the onus to demonstrate that justice and equity demanded intervention under s178; the trustee’s decision not to prosecute the leave application was reasonable, based on lack of evidence of prospects and funding, and the Federal Magistrate did not err in refusing the adjournment or in other respects.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the first respondent's costs of the appeal on an indemnity basis, such costs to be paid from the estate of the bankrupt." "The appellant is to pay the second respondent's costs of the appeal on the ordinary basis, such costs to be paid from the estate of the...