Tyne v UBS AG (No 4) [2017] FCA 374

Tyne v UBS AG (No 4) [2017] FCA 374

Because the Trustee of Ms Marks' bankrupt estate was served with notice of the proceeding on 8 March 2017 and did not elect within the 28 day period under s 60(3) of the Bankruptcy Act 1966 (Cth), the proceeding in Ms Marks' name was deemed abandoned and should be dismissed. UBS was entitled to its costs of and incidental to Ms Marks' proceeding. The existing Full Court costs order in favour of Ms Marks was not set aside or re-opened in this proceeding; any application to re-open it should be agitated before the Full Court. Mr Tyne ought to have informed the Court of Ms Marks' sequestration order, and UBS's costs of the case management hearings occasioned by that issue should be paid by...

Jurisdiction
Australia
Judgment Date
11 April 2017
Procedural Posture
Bankruptcy and Insolvency; Costs and Case Management in Federal Court Proceeding / Orders Following Deemed Abandonment of the Second Applicant's Action Under S 60(3) of the Bankruptcy Act 1966 (cth)
Outcome
The Second Applicant's proceeding against the Respondent was dismissed; costs orders were made in favour of the Respondent; the matter was listed for further case management.
Legal Topics
["deemed Abandonment of Bankrupt's Action" 'trustee Election Under S 60(3)' 'dismissal of Proceeding' 'costs Orders' 'indemnity Costs' 're Opening Appellate Costs Orders']
['bankruptcy and Insolvency' 'civil Procedure' 'costs' 'corporations and Corporate Insolvency'] ["deemed Abandonment of Bankrupt's Action" 'trustee Election Under S 60(3)' 'dismissal of Proceeding' 'costs Orders' 'indemnity Costs' 're Opening Appellate Costs Orders']

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Procedural Posture

Bankruptcy and Insolvency; Costs and Case Management in Federal Court Proceeding / Orders Following Deemed Abandonment of the Second Applicant's Action Under S 60(3) of the Bankruptcy Act 1966 (cth)

Legal Issues

  1. 1 ["What orders should be made where the Trustee of the Second Applicant's bankrupt estate did not elect within 28 days after notice of the action under s 60(3) of the Bankruptcy Act 1966 (Cth)." "Whether the Respondent should have its costs of and incidental to the Second Applicant's proceeding." 'Whether existing Full Court costs orders in favour of the Second Applicant should be set aside or re-opened.' "Whether the First Applicant should pay the Respondent's costs of the case management hearings on 17 March 2017 and 10 April 2017 on an indemnity basis."]

Ratio Decidendi

Because the Trustee of Ms Marks' bankrupt estate was served with notice of the proceeding on 8 March 2017 and did not elect within the 28 day period under s 60(3) of the Bankruptcy Act 1966 (Cth), the proceeding in Ms Marks' name was deemed abandoned and should be dismissed. UBS was entitled to its costs of and incidental to Ms Marks' proceeding. The existing Full Court costs order in favour of Ms Marks was not set aside or re-opened in this proceeding; any application to re-open it should be agitated before the Full Court. Mr Tyne ought to have informed the Court of Ms Marks' sequestration order, and UBS's costs of the case management hearings occasioned by that issue should be paid by...

Court Disposition

The Second Applicant's proceeding against the Respondent was dismissed; costs orders were made in favour of the Respondent; the matter was listed for further case management.

Orders

  • ['The proceeding brought by the Second Applicant against the Respondent is dismissed.' "The Second Applicant pay the Respondent's costs of and incidental to her proceeding." "The First Applicant pay the Respondent's costs of and incidental to the case management hearings on 17 March 2017 and 10 April 2017 on an...