Liristis v Gadelrabb (No 2) [2012] NSWCA 363

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Liristis v Gadelrabb (No 2) [2012] NSWCA 363 Hearing dates: 2 November 2012 Decision date: 02 November 2012 Before: Basten JA Decision: (1) Declare that the proceedings brought by Mr Liristis in this Court are deemed to have been abandoned pursuant to s 60(3) of the Bankruptcy Act. (2) Lift the stay imposed by this Court by way of order 3 made on 20 July 2011. (3) Vacate the date for hearing the application for leave to appeal presently fixed for 5 December 2012. (4) Dismiss the proceedings. [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 - election by trustee in bankruptcy to prosecute or discontinue legal proceedings - whether proceedings are "for personal injury or wrong done to the bankrupt" - proceedings concern contractual arrangements in relation to real property - whether trustee had notice of the proceedings for 28 days - whether proceedings deemed to be abandoned - Bankruptcy Act 1966 (NSW), s 60

PROCEDURE - adjournment - respondent alleged inability to attend court due to medical condition and treatment - whether respondent unable to attend court due to medical condition - whether evidence of medical treatment - whether respondent aware of hearing Legislation Cited: Bankruptcy Act 1966 (Cth), ss 60, 116 Cases Cited: Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 Cox v Journeaux (No 2) [1935] HCA 48; 52 CLR 713 Faulkner v Bluett (1981) 52 FLR 115 Liristis v Gadelrabb [2012] NSWCA 327 Category: Principal judgment Parties: Tony Liristis (Applicant) Julia Gadelrabb (Respondent) Representation: Counsel: