Wu v Li (No 2) [2017] FCA 501

FEDERAL COURT OF AUSTRALIA

Wu v Li (No 2) [2017] FCA 501 Appeal from: Li v Wu [2016] FCCA 2836

File number: ACD 96 of 2016

Judge: RARES J

Date of judgment: 28 April 2017

Catchwords: APPEAL AND NEW TRIAL – where trial judge extended life of creditor's petition retrospectively after petition expired under s 52(4) of the Bankruptcy Act 1966 (Cth) and made sequestration order – where appeal upheld and sequestration order set aside – where trustees appointed to administer bankrupt's estate under s 157 of the Bankruptcy Act 1976 (Cth) and incurred costs and remuneration – whether Court should exercise appellate power under s 28 of Federal Court of Australia Act 1976 (Cth) to order creditor/respondent and or appellant to pay costs and remuneration incurred by the trustees appointed under s 157 of the Bankruptcy Act 1966 (Cth) COSTS – Federal Proceedings (Costs) Act 1981 (Cth) – application for costs certificate under s 10(2) – where appeal held trial judge invalidly granted retrospective extension of creditor's petition after petition expired and had been unable to give judgment in proceedings below because petition had lapsed under s 52(4) of the Bankruptcy Act 1976 (Cth) – whether appropriate to grant costs certificate

Legislation: Bankruptcy Act 1966 (Cth) Div 2 Pt VIII, ss 52, 153B Federal Court of Australia Act 1976 (Cth) s 28 Federal Proceedings (Costs) Act 1981 (Cth) s 10 Federal Court Rules 2011 r 39.05

Cases cited: Commonwealth v McCormack (1984) 155 CLR 273 Cox v Hakes (1890) 15 App Cas 506 Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375 Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 Pattison v Hadjimouratis (2006) 155 FCR 226 Wu v Li [2017] FCA 500