Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Hearing dates: 15 August 2011 Decision date: 09 September 2011 Before: Young JA Decision: Appeal and motion for leave to appeal dismissed with costs against Mr Savage. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS- appellant declared bankrupt after filing notice of appeal and summons seeking leave to appeal from District Court judgment- no election by trustee to prosecute or discontinue therefore deemed to be abandoned under s 60(3) Bankruptcy Act- application by respondent for appeal and leave to appeal to be dismissed, and appellant to pay costs personally as fixed by the Court- whether an appeal and application for leave to appeal are "actions" under s 60- whether an appeal and application for leave to appeal that are abandoned under s 60 can be dismissed- possibility of bankrupt re-litigating question once bankruptcy discharged not a consideration in this situation- appeal and application for leave to appeal dismissed- costs payable by appellant personally- whilst Court has power to fix costs, it declines in circumstances to so order. Legislation Cited: Bankruptcy Act 1966 (Cth), s 60 Civil Procedure Act 2005, s 98 District Court Act 1973, s 127 Cases Cited: Arnoya Holdings Pty Ld v Metway Leasing Ltd [1999] NSWCA 120 Beach Petroleum NL v Johnson (No 2) (1995) 57 SCR 119 Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 Cole v Challenge Bank Ltd [2002] FCAFC 200 Cummings v Claremont Petroleum NL [1996] HCA 19; 185 CLR 124 Daemar v Industrial Commission of NSW (1988) 12 NSWLR 45 Foot v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 135; 44 ACSR 705 Hamod v State of NSW (No 13) [2009] NSWSC 756 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Millane v President of the Shire of Heidelberg [1928] VLR 52 United Telephone Company v Bassano (1886) 31 Ch D 630 Voskuilen v Morisset Mega Markets [2005] NSWSC 34 Want v Moss (1889) 10 LR (NSW) 274 Category: Procedural and other rulings Parties: Matthew Ronald Savage (Appellant) Australian Unity Funds Management Ltd (Respondent) Representation: T Dinh (Applicant/Respondent) No appearance for appellant Allens Arthur Robinson (Applicant/Respondent) File Number(s): CA 2011/44683