Khadpekar v Official Trustee in Bankruptcy (No 2) [2009] FCA 244

FEDERAL COURT OF AUSTRALIA

Khadpekar v Official Trustee in Bankruptcy (No 2) [2009] FCA 244

BANKRUPTCY – whether the discretion under s 178 of the Bankruptcy Act 1966 (Cth) at large – whether the discretion under s 178 can only be exercised to require a trustee in bankruptcy to appeal a judgment against a bankrupt where the judgment is one which affects the bankrupt's personal or professional character ‑ whether it is essential to the exercise of such discretion that a bankrupt provide security for a trustee in bankruptcy's costs of the appeal Bankruptcy Act 1966 (Cth) s 178 Khadpekar v Official Trustee in Bankrutpcy [2008] FCA 1888 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Frost v Sheahan (Trustee) [2009] FCAFC 20 Benfield v Solomons (1803) 9 Ves Jun 77 Heath v Tang [1993] 1 WLR 1421 Dib v Regtop [2006] NSWCA 380 MANGALA KHADPEKAR v OFFICIAL TRUSTEE IN BANKRUPTCY

QUD 149 of 2008

SIOPIS J

19 MARCH 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY QUD 149 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MANGALA KHADPEKAR

Appellant

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 19 MARCH 2009

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The appellant's application dated 1 October 2007 is remitted to the Federal Magistrates Court to be reheard. 3. The appellant is to file and serve any submissions on costs within 14 days. 4. The respondent is to file and serve any submissions on costs within 14 days of receiving the appellant's submissions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA