Boensch v City of Parramatta Council [2020] NSWLEC 163

Land and Environment Court New South Wales

Medium Neutral Citation: Boensch v City of Parramatta Council [2020] NSWLEC 163 Hearing dates: 13, 20 and 27 March, 15 and 29 May, 21 August, 22 October and 20 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Class 2 Before: Moore J Decision: See orders at [100] Catchwords: APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 - Appellant becomes bankrupt after commencing the appeal - effect of s 60 of the Bankruptcy Act 1966 (Cth) - Council solicitors seek views of bankruptcy trustees - bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings - bankruptcy trustees' position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned - meaning of "action" for the purposes of the provision - whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an "action" for the purposes of s 60 - scope of the term "action" is to be construed as encompassing these appeal proceedings - whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted - extension merely legitimises the validity of the appeal and does not alter the date of its commencement - whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act - proceedings not saved by s 60(4) of the Bankruptcy Act - necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal COSTS - costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act - such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy - Council expressly disclaims seeking any order for costs in these proceedings - costs not to be ordered Legislation Cited: Bankruptcy Act 1924-1933 (Cth), s 63 Bankruptcy Act 1966 (Cth), ss 60 and 153B Land and Environment Court Act 1979, s 56A Local Government Act 1992, s 124 Uniform Civil Procedure Rules 2005, r 50.3 Cases Cited: Arnoya Holdings Pty Limited & Ors v Metway Leasing Limited [1999] NSWCA 120 Bailey v Boensch [2020] NSWSC 1391 Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381 Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 Cummings v Claremont Petroleum NL (1995‑1996) CLR 124 Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 Fisher v Transport for NSW [2016] NSWSC 1888 Foots v Southern Cross Mine Management Pty Ltd and Others (2007) 234 CLR 52; [2007] HCA 56 In the matter of St Gregory's Armenian School Inc (in liq) (No 2) [2020] NSWSC 1601 Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92 Mannigel v Hewlett Phelps and Ors [1991] NSWCA 186 Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151 Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Somerville Legal Pty Ltd v Boensch [2019] FCCA 3637 Want v Moss (1889) 10 NSWR (L) 274 Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' (July 2020) Category: Procedural and other rulings Parties: Mr F Boensch (Appellant) City of Parramatta Council (Respondent) Representation: Counsel: Appellant in person Mr A Stafford, barrister (Respondent)