Moore v Macks [2007] FCA 10

FEDERAL COURT OF AUSTRALIA

Moore v Macks [2007] FCA 10

BANKRUPTCY – application by bankrupt for orders against trustee in bankruptcy under s 179 of the Bankruptcy Act 1966 (Cth) – where bankrupt was unsuccessful respondent in separate proceedings in Federal Court – where bankrupt appealed prior to bankruptcy against substantive orders and costs order made in separate Federal Court proceedings – where appeals deemed to be abandoned by trustee in bankruptcy by virtue of s 60(3) of Bankruptcy Act 1966 (Cth) – where trustee in bankruptcy has decided not in interests of bankrupt estate to prosecute the appeals – whether trustee in bankruptcy may apply under s 33(1) of the Bankruptcy Act 1966 (Cth) for extension of time within which to elect to prosecute appeals – where trustee in bankruptcy has decided not in interests of bankrupt estate to prosecute the appeals – whether trustee's decision a basis for orders under s 178 or s 179 of Bankruptcy Act 1966 (Cth) – relevant principles. Held – no basis in fact to impugn trustee's decision that not in interests of bankrupt estate to prosecute the appeals under s 178 or s 179 of Bankrupcy Act 1966 (Cth) – application dismissed. Bankruptcy Act 1966 (Cth) ss 33, 60, 178, 179 Federal Magistrates Act 1999 (Cth) s 39 Abeyratne v Trkulja (1998) 90 FCR 253 cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124 applied Faulkner, Re; Ex parte Official Receiver (1981) 52 FLR 109 cited Gault, Re, Gault v Law (1981) 57 FLR 165 considered Gray v Clout (1990) 27 FCR 141 cited Macchia v Nilant (2001) 110 FCR 101 considered Moore v Macks [2006] FMCA 594 discussed Moore v Wilson [2006] FCA 79 referred to Moore v Wilson [2005] FMCA 870referred to Tyndall, Re; Ex parte Official Receiver (1977) 17 ALR 182 considered Wheeler, Re; Ex parte Wheeler v Halse (1994) 54 FCR 166 considered Wilson v Commonwealth of Australia [1999] FCA 219 considered Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912 discussed Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 1035 discussed DAVID GERALD MOORE v PETER IVAN MACKS SAD 120 OF 2006