MacDonald v Raupach [2011] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: MacDonald v Raupach [2011] NSWCA 320 Hearing dates: 30 September 2011 Decision date: 30 September 2011 Before: Bathurst CJ at [26] [31] Young JA at [1]; Sackville AJA at [27] Decision: Appeal is dismissed with costs. [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: BANKRUPTCY- provable debts- bankrupt entered into a deed for payment of $100,000 to settle a District Court action in which he was a third party- deed entered into for relationship's sake not because of pre-existing liability- only paid $20,000- primary judge ordered appellant to pay $80,000 plus interest and costs- money due under deed not a provable debt because not a contingent debt existing at the time of the bankruptcy- bankruptcy later annulled because of composition- effect of annulment of bankruptcy is as if bankruptcy never occurred in the first place- no leave to proceed against the bankrupt in the District Court had been obtained- this did not vitiate- in any event annulment made the defect otiose- even if a provable debt, respondents' rights revived after annulment- deed enforceable- appeal dismissed. Legislation Cited: Bankruptcy Act 1966 (Cth) ss 82, 149 Contracts Review Act 1980 Cases Cited: Foots v Southern Cross Mine Management Pty Limited [2007] HCA 56; 234 CLR 52 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 Re Coyle (1993) 42 FCR 72 Re Giuca; Ex parte The Bankrupts (1986) 70 ALR 219 Re Spratt; Ex parte Wilde (1986) 10 FCR 544 Reynolds v Reynolds [1977] 2 NSWLR 295 Union Club v Battenberg [2006] NSWCA 72; 66 NSWLR 1 Wilde v Spratt (1986) 13 FCR 284 Category: Principal judgment Parties: Neil MacDonald (Appellant) Douglas Raupach (First Respondent) Enrico Di Lario (Second Respondent) Sandra Simone Di Lario (Third Respondent) Representation: Counsel: Appellant in person V Bedrossian (First Respondent) R M Higgins (Second and Third Respondents) Solicitors: Appellant self represented Accentro Legal (First Respondent) Hunter Lawyers (Second and Third Respondents) File Number(s): CA 2007/261840 Decision under appeal Citation: Raupach v MacDonald [2010] NSWSC 1326 Date of Decision: 2010-11-24 00:00:00 Before: Price J File Number(s): SC 2007/261840