LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY No. W.743 of 1986 wee we BRYAN C. CUTTER Applicant EX PARTE: ROBERT IAN MORISON Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. I am asked ex parte for judicial advice as to whether the trustee of the bankrupt estate of Brian Geoffrey Cutter would be justified in refusing to treat a letter dated 31 July 1986 written by Messrs Ferrier and Associates, Solicitors, as requiring him to make an election under s.60(2) of the Bankruptcy Act 1966. Messrs Ferrier and Associates act, and were acting at the date of the letter, as solicitors on behalf of the bankrupt in proceedings in Commercial Causes in the Supreme Court of New South Wales. Those proceedings had actually been carried to the point where his Honour, Mr. Justice Rogers had reserved his decision, at the time when the sequestration order was made. Subsequently, he delivered a judgmep er which 1t would appear ~20CT 1986 FEDERAL COURT AUSTRALIA. OF PRINGIP, REGISTRY 2. that orders are likely to be made which will be favourable to the bankrupt, and ultimately to the estate. However, the matter has been relisted before Mr. Justice Rogers for tomorrow for the purpose of consideration of what the appropriate orders will, in fact, be. There is a decision of Mr. Justice Holland in Beneficial Insurance Company Ltd v. Hamilton (1985) 73 F.L.R. 347, the effect of which is that s.60(2) of the Bankruptcy Act does not apply to the mere making of consequential orders, or indeed the delivery of judgment where judgment has been reserved prior to the making of the sequestration order. There is also a decision of my own, Re Collins; Ex parte official Trustee in Bankruptcy and Bracher (1986) 65 A.L.R. 338, where I held that the expression in sub-s.(3) of s.60, "defendant or other party to the action" included other parties who were in a position analogous to that of a defendant, such as cross-defendants, but not the plaintiff himself. It seems to me that it follows from each of these decisions, which I think are consistent with each other, though not based upon identical reasoning, that the situation has not arrived where the trustee is required to make an election. On the evidence before me, no party falling within the statutory phrase, as I have interpreted it in Re Collins, has yet called upon the trustee to make his election. Furthermore, judgment was 3. reserved prior to the making of the sequestration order, and therefore the decision of Mr. Justice Holland would also apply to the particular circumstances of this case. For these reasons, I respond to the request for judicial advice by advising the trustee that he is not required under s.60 to make an election at the present time. I order that the costs of the application be paid out of the estate. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. oun Hae Associate Dated: 28 August, 1986.