Voskuilen v Morisset Mega Markets [2005] NSWSC 34

New South Wales Supreme Court

CITATION : Voskuilen v Morisset Mega Markets [2005] NSWSC 34

HEARING DATE(S) : 02/02/05

JUDGMENT DATE : 2 February 2005

JUDGMENT OF : Gzell J

DECISION : Proceedings dismissed. Plaintiff ordered to pay defendant's costs of action and motion.

CATCHWORDS : BANKRUPTCY - Proceedings in Connection with Sequestration - Plaintiff declared bankrupt - Official Trustee indicates will not take part in trial - Whether an election to discontinue - Whether Official Trustee deemed to have abandoned action under the Bankruptcy Act 1966 (Cth), s 60(3) - Whether defendant on motion to dismiss action should have an order for costs out of the bankrupt estate - Whether defendant should have an order for costs of action and motion against plaintiff

Retail Leases Act 1994 LEGISLATION CITED : Bankruptcy Act 1966 (Cth) Supreme Court Rules 1970

Cummings v Claremont Petroleum NL (1995-1996) 185 CLR 124 CASES CITED : Cole v Challenge Bank Ltd [2002] FCAFC 200

Harry Voskuilen - Plaintiff PARTIES : Morisset Mega Market - Plaintiff

FILE NUMBER(S) : SC 1258/02

Plaintiff - No appearance COUNSEL : Defendant - Mr T W Marskell

SOLICITORS : Clayton Utz Lawyers - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

WEDNESDAY 2 FEBRUARY 2005

1258/02 HENRICUS GERARDUS VOSKUILEN v MORISSET MEGA-MARKET PTY LTD EX TEMPORE JUDGMENT 1 The plaintiff in these proceedings, Henricus Gerardus Voskuilen, commenced proceedings against the defendant Morisset Mega-Market Pty Ltd in 2002. 2 The statement of claim alleged that Mega-Market had licensed to Mr Voskuilen stalls in its market and then refused him access to the stalls, contrary to the Retail Leases Act 1994. There was a claim for damages. 3 The matter was set down for trial before me, commencing today. On 24 September 2004, Mr Voskuilen was declared bankrupt. His estate then vested in the Official Trustee under the Bankruptcy Act 1966 (Cth), s 58. That included the cause of action in these proceedings (Cummings v Claremont Petroleum NL (1995-1996) 185 CLR 124). 4 The Bankruptcy Act 1966 (Cth), s 60(2) and s 60(3) are in the following terms: "(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.