Savage v Soloman [2022] NSWDC 244

District Court New South Wales

Medium Neutral Citation: Savage v Soloman [2022] NSWDC 244 Hearing dates: 29 June 2022 Date of orders: 5 July 2022 Decision date: 05 July 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Determine the separate question as follows: the defendant has no right to seek to set aside the judgment entered against him, as that right has vested in the Official Trustee. (2) Dismiss the defendant's Notice of Motion filed on 19 January 2022. (3) Order the defendant to pay the plaintiff's costs. Catchwords: BANKRUPTCY – defendant is an undischarged bankrupt - vesting of property on bankruptcy – whether the right to seek to set aside a default judgment is part of the property of the bankrupt and therefore vested in the Official Trustee – whether that right is outside the Bankruptcy Act and remains with the defendant himself PROCEDURE – whether defendant has standing to bring a notice of motion to set aside default judgment Legislation Cited: Uniform Civil Procedure Rules (NSW) 2005, rr 28.2, 28.4, 36.16 Bankruptcy Act 1966 (Cth), ss 5, 58, 60, 116, Cases Cited: Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 Heath v Tang [1993] 1 WLR 1421; [1993] 4 All ER 694 Hedwan v Hannouf (1997) 140 FLR 229 Soloman v Savage [2018] NSWCA 249 Soloman v Savage [2019] NSWCA 294 Baulkham Hills Shire Council v Stankovic (No. 6) [2010] NSWLEC 33 Category: Procedural rulings Parties: Robin Savage (Plaintiff) Phillip Soloman (Defendant) Representation: Counsel: P Thompson (solicitor) (Plaintiff) V Mishra (solicitor) (Defendant)