Penson v Titan National Pty Ltd

SIMPSON JA: On 16 December 2015 this Court delivered three judgments:

In Penson v Titan Titan National Pty Ltd (No 2) [2015] NSWCA 403 the Court dismissed an application by Ms Shirley Penson for to leave to appeal against an order of Black J made on 12 June 2015. In Penson v Titan National Pty Ltd [2015] NSWCA 404 the Court dismissed an application by Ms Penson for judicial review of two earlier decisions of this Court: Penson v Titan National Pty Ltd [2015] NSWCA 165; Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197. In Penson v Titan National Pty Ltd (No 5) [2015] NSWCA 405 the Court dismissed two summonses, in each of which Ms Penson sought leave to appeal against the same decision of the District Court, and a notice of motion in which she sought a stay, and other orders relating to orders made by Emmett AJA: Penson v Titan National Pty Ltd (No 4) [2015] NSWCA 350. In each case the Court ordered Ms Penson to pay the costs of the application.

On 23 December 2015 solicitors acting for Kathryn Wood-Weber (the second respondent in each case) filed four notices of motion, in each case seeking orders that the costs be paid on an indemnity basis and as a gross sum. On 30 December 2015 Ms Penson filed a notice of motion seeking orders that “the judgment” delivered on 16 December 2015 be set aside or varied, and stay of the costs orders in those proceedings.

In correspondence with the Court, on 6 May 2016 solicitors for Ms Wood-Weber advised the Registrar of this Court that Ms Penson had been declared bankrupt. That is supported by a note made by Kunc J in the Equity Division on 5 May, in proceedings entitled: Interlocutory application under Corporations Act: Shirley Penson (2013/002971345-013). His Honour noted that Mr Paul Leroy of Hall Chadwick had been appointed Ms Penson’s trustee in bankruptcy, and that he did not intend to proceed with any outstanding applications that had been commenced by Ms Penson.

On 27 July 2016 the parties were invited by the Registrar to inform him of the course they proposed to take in relation to the matters, in particular whether Ms Wood-Weber intended to seek leave from the Federal Court to proceed with their application against Ms Penson for costs, and whether the trustee in bankruptcy elected to continue with the notice of motion she had filed.

No reply has been received to this communication. In the circumstances it is appropriate that each notice of motion be dismissed. I so order.