Elias v Pascoe [2006] NSWCA 110

New South Wales Court of Appeal

CITATION: Elias v Pascoe [2006] NSWCA 110 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 March 2006

JUDGMENT DATE: 9 May 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 66; Bryson JA at 113

DECISION: Leave to appeal granted. Appeal allowed with costs. Orders at [65].

CATCHWORDS: PRACTICE AND PROCEDURE – BANKRUPTCY – summary judgment – whether arguable case that claimant entitled to defend opponent's action – jurisdiction of District Court to hear challenge to Notice issued pursuant to s139ZQ Bankruptcy Act 1966 – whether District Court proceedings should have been stayed to enable claimant to pursue application in Federal Magistrates Court to set aside Notice.

LEGISLATION CITED: Bankruptcy Act 1966 (C'th) s5, s27, s120, s121, s123, s139J, s139ZQ, s139ZR, s139ZS, s139ZT, s139ZQ, Constitution s75

Cottrell v Nichols [2003] FCA 1351 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] 112 CLR 125 CASES CITED: Green v Schneller (2001) 189 ALR 464 Halse v Norton (1997) 76 FCR 389 Re Chase; Permfox Pty Ltd v Official Receiver for the Bankruptcy District of New South Wales [2002] FCA 1564 Re McLernon; ex parte SWF Hoists and Industrial Equipment Pty Ltd v Prebble (1995) 58 FCR 391 Sutherland v Brian (1999) 149 FLR 321

PARTIES: George ELIAS (Appellant) Scott Darren PASCOE as trustee of the bankrupt Estate of Milad ELIAS (Respondent)