Nathan Elali (a bankrupt) v Mahrs and Anor [2013] NSWSC 1883

Supreme Court New South Wales

Medium Neutral Citation: Nathan Elali (a bankrupt) v Mahrs and Anor [2013] NSWSC 1883 Hearing dates: 13 December 2013 Decision date: 16 December 2013 Jurisdiction: Equity Division Before: Slattery J Decision: Application adjourned to be heard at a final hearing to take place on 19 December 2013. Catchwords: PROCEDURE - application to strike out the summons -the defendants leased their house to the plaintiff for 1 year - the plaintiff seeks a declaration that the lease was extended for another year - plaintiff is, and was when the lease was executed, an undischarged bankrupt - the trustee confirmed that he did not consent to the proceedings and did not appear - whether the plaintiff has standing to bring the proceedings - whether the property in the lease vested in the trustee in bankruptcy - whether an urgent trial should be ordered. Legislation Cited: Bankruptcy Act 1966, ss 58, 60(2) and 60(3), 116, 126(1), 131 Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005 Cases Cited: Cooper v Moloney (No 5) [2012] SASC 211 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gough v Fraser [1977] 1 NZLR 279 Inspector-General in Bankruptcy v McGushin [2009] FCA 662 Kison v Papasian (1994) 61 SASR 567 Maher v Commonwealth Bank of Australia (2004) FCA 248 National Australia Bank Ltd v Strik [2009] NSWSC 184 Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700 Webster v Lampard (1993) 177 CLR 598 Category: Procedural and other rulings Parties: Plaintiff:- Nathan Elali (a bankrupt) First Defendant: Carl Frederik Reinhold Mahrs Second Defendant:- Melinda Mahrs Representation: Counsel: Plaintiff - Mr RPV Carey Solicitors: Plaintiff:- D. Massey Defendants:- M. Smith Brander Smith McKnight File Number(s): 2013/302179 Publication restriction: No