Tse v Evans as trustee in bankruptcy for Ngo [2024] FCA 787

Federal Court of Australia

Tse v Evans as trustee in bankruptcy for Ngo [2024] FCA 787 File number(s): NSD 551 of 2024

Judgment of: PERRY J

Date of judgment: 10 July 2024

Date of publication: 18 July 2024

Catchwords: BANKRUPTCY – application for leave to proceed against bankrupt in Supreme Court proceeding pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – principles applicable to exercise of discretion to grant leave to proceed – where trustee of bankrupt neither consents nor opposes the ground of leave.

Legislation: Bankruptcy Act 1966 (Cth) s 58(3)(b)

Cases cited: Alesco Corporation Limited v Te Maari [2015] NSWSC 469 Hillig in the matter of Battaglia [2019] FCA 2191 Yan v Spyrakis as trustee in bankruptcy for Liu [2022] FCA 872

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 24

Date of hearing: 10 July 2024

Counsel for the Applicants: Mr S Jacobs; Mr K Lwin

Solicitor for the Applicants: YML Legal

Solicitor for the Respondent: Ms B Aoude of Kerrs Law Pty Ltd

ORDERS NSD 551 of 2024

BETWEEN: GORDON KAR MING TSE First Applicant

TIEHONG CHEN Second Applicant

AND: FLEUR EVANS & DAVID SAMPSON AS TRUSTEE IN BANKRUPTCY FOR VIET TRUNG NGO Respondent

order made by: PERRY J DATE OF ORDER: 10 JULY 2024

THE COURT ORDERS THAT:

1. The applicants have leave to adduce evidence in respect of prayer for substantive relief 1 pursuant to s 192A of the Evidence Act 1995 (Cth) in the form of that served being: (a) the affidavit of Gordon Kar Ming Tse affirmed 10 April 2024 together with Exhibit GT-1; (b) the affidavit of Tiehong Chen affirmed 10 April 2024 together with Exhibit TC-1; (c) the affidavit of Hai Xia Song affirmed 10 April 2024 together with Exhibit HS-1; (d) the affidavit of Yang Liu affirmed 11 April 2024 together with Exhibit YL-1; (e) the affidavit of Kanin Lwin affirmed 25 April 2024 together with Exhibit CH-1. 2. Leave is granted under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to the applicants to continue proceeding no. 2023/00231043 in the Supreme Court of New South Wales against Viet Trung Ngo, the first defendant in those proceedings. 3. In the event that no agreement is reached on the issue of costs, on or before 4:00pm on Wednesday 24 July 2024, the applicants are to file and serve a short submission, of no more than 5 pages, in support of their position in respect of costs. 4. On or before 4:00pm on Wednesday 31 July 2024, the respondent is to file and serve any submission, of no more than 5 pages, in response on the issue of costs. 5. On or before 4:00pm on Wednesday 7 August 2024, the applicants are to file and serve any submissions in reply of no more than 3 pages. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.