[2013] NSWSC 602

Shannon v Commonwealth Bank of Australia [No. 2]

1. The proceedings are dismissed; 2. I order that the plaintiff pay the costs of and incidental to the proceedings up to and including 18 February 2013.

Catchwords

PRACTICE AND PROCEDURE - plaintiff became bankrupt after decision reserved in primary proceedings - proceedings previously stayed until trustee in bankruptcy made election to prosecute or discontinue the action pursuant to s 60(2) Bankruptcy Act 1966 (Cth) - no election made within 28 days after notice of the action served upon trustee as required by s60(3) Bankruptcy Act - trustee deemed to have abandoned action - proceedings dismissed

Legislation cited

Bankruptcy Act 1966 (Cth)

Judgment

[1]
On 11 April 2013 I made a declaration to the effect that the present proceedings are stayed by force of s 60(2) of the Bankruptcy Act 1966 (Cth). The matter was stood over for further mention before me today. When the matter was called Ms Minassian, solicitor, appeared for the defendant but there was no appearance either for the plaintiff or for her trustee in bankruptcy. The plaintiff's name was called outside the court three times in accordance with custom and there was still no appearance.
[2]
I gave Ms Minassian leave to file in court, and read, her affidavit sworn today. That affidavit, amongst other things, annexes her letter to the trustee in bankruptcy dated 11 April 2013 which I am satisfied, on the basis of her evidence, was duly sent by express post. In that regard I refer to the sticker appearing on annexure C to Ms Minassian's affidavit.
[3]
I am now satisfied that the trustee in bankruptcy has had adequate notice of these proceedings in accordance with subsection (3) of s60 of the Bankruptcy Act and has failed to make an election in writing as required by subs(2) to either prosecute or discontinue the action. I am satisfied in accordance with subsection (3) that the trustee is deemed to have abandoned the action.
[4]
I make the following orders:
1. (1)
  The proceedings are dismissed.
2. (2)
  I order that the plaintiff pay the costs of and incidental to the proceedings up to and including 18 February 2013.