Kok v Commonwealth Development Bank [2004] NSWSC 51

New South Wales Supreme Court

CITATION : Kok v Commonwealth Development Bank [2004] NSWSC 51 HEARING DATE(S) : 11/02/2004 JUDGMENT DATE : 13 February 2004

JUDGMENT OF : Shaw J at 1 DECISION : 1) The defendant's motion succeeds; 2) The plaintiff has no standing to bring the proceedings; 3) The plaintiff's appeal is dismissed; and 4) The plaintiff is to pay the defendant's costs.

CATCHWORDS : standing - locus standi - Bankruptcy Act LEGISLATION CITED : Bankruptcy Act 1966 (Cth), s60 Commonwealth Development Bank of Australia Ltd v Kok; In the matter of Kok [2003] FCA 90; Cummings v Claremont Petroleum NL (1996) 185 CLR 124; Faulkner v Bluett (1981) 52 FLR 115; CASES CITED : Fuller v Beach Petroleum NL; Cummings v Beach Petroleum NL (1993) 43 FCR 60; Heath v Tang [1993] 1 WLR 1421; [1993] 4 All ER 694; Kok v Commonwealth Development Bank (Australia) Ltd [2003] FCA 1107; Want v Moss (1889) 10 NSWR (L) 274 PARTIES : Bernard Cornelis Kok - plaintiff/respondent Commonwealth Development Bank of Australia Limited - defendant/applicant FILE NUMBER(S) : SC 13257/2002 COUNSEL : In Person - plaintiff/respondent J. Lanser (sol) - defendant/applicant SOLICITORS : J.K O'Sullivan - defendant/applicant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Shaw J

13 February 2004

13257 of 2002

Bernard Cornelis Kok (Plaintiff)

v

Commonwealth Development Bank of Australia Limited (Defendant)

JUDGMENT 1 Shaw J: In this matter, there is a challenge to the locus standi of the plaintiff to bring an action in the Common Law Division of this Court. 2 The gist of the action is described in an unreported judgment of Kirby J of 13 October 2003. To adopt the language in his Honour's judgment, Mr Kok has commenced an action against the Commonwealth Development Bank (Australia) Limited in the Local Court seeking to set aside the judgment. There was an application heard by the Registrar, and then an appeal to a magistrate who refused to set aside the default judgment which the defendant bank had obtained. There was no dispute that the action commenced in this Court was filed on or about 3 December 2002, and the Order of Sequestration rendering the plaintiff bankrupt was made by the Federal Court on 14 February 2003: Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 per Beaumont J.