Carvana v State of New South Wales (No 2) [2024] NSWSC 1396

Supreme Court New South Wales

Medium Neutral Citation: Carvana v State of New South Wales (No 2) [2024] NSWSC 1396 Hearing dates: 30 May 2024, 17 September 2024 Date of orders: 05 November 2024 Decision date: 05 November 2024 Jurisdiction: Common Law Before: Wright J Decision: (1) To the extent necessary, that aspect of the proceedings dealing with the plaintiff's claim for trespass to goods is dismissed. (2) The plaintiff is to pay the defendant's costs of the proceedings in the sum of $250,000.00. Catchwords: BANKRUPTCY – Proceedings commenced by a plaintiff who subsequently becomes a bankrupt – whether proceedings involving claims for malicious prosecution, false imprisonment and trespass to goods proceedings in respect of a personal wrong done to the bankrupt within s 60(4) of the Bankruptcy Act 1966 (Cth) – whether proceedings continued by the bankrupt – whether aspects of proceedings not within s 60(4) should be dismissed after failure by trustee to elect to continue. COSTS – indemnity costs – offer of compromise under Uniform Civil Procedure Rules 2005 (NSW), r 20.26 – where plaintiff fails to obtain a judgment no more favourable to the plaintiff than the terms of the offer – where plaintiff is unrepresented – indemnity costs order made. COSTS – gross sum costs order – where plaintiff liable for costs is unlikely to be able to pay any costs order – gross sum costs order made. Legislation Cited: Bankruptcy Act 1966 (Cth), ss 57A, 60, 116(2), 149(1)(b) Civil Procedure Act 2005 (NSW), s 98(4)(c) Bankruptcy Regulations 2021 (Cth), reg 27 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15 Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Carvana v State of New South Wales [2024] NSWSC 254 Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Hamod v State of New South Wales [2011] NSWCA 375 Lee v The State of Western Australia [2023] WASCA 165 Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 Moran v Minco Holdings Pty Ltd (in Liquidation) [2022] WASCA 93 Re Niruzzi Pty Ltd [2012] NSWSC 773 Rock v Henderson [2021] NSWCA 155 Seafolly Pty Ltd v Maddern (No 6) [2015] FCA 1369 Sheehan v Brett-Young (No 3) (2016) 50 VR 467; [2016] VSC 39 Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788 Zarfati v McMillan [2023] NSWSC 839 Category: Consequential orders Parties: David Romano Carvana (Plaintiff) State of New South Wales (Defendant) Representation: No appearance by or on behalf of the Plaintiff or his trustee in bankruptcy