Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Hearing dates: 17 November 2015 Decision date: 18 December 2015 Before: Bergin CJ in Eq at [1] Tobias AJA at [2] Emmett AJA at [57] Decision: 1 Appeal dismissed. 2 Direct the appellants on or before 5 February 2016 to file any submissions they wish to make as to why an order that they pay the first respondent's costs of the appeal on an indemnity basis should not be made. In the event that no such submissions are filed by that date, an order for indemnity costs will be made accordingly. Catchwords: REAL PROPERTY – statutory trust for sale – co-ownership - application by Official Trustee in Bankruptcy under s 66G of the Conveyancing Act 1919 (NSW) – proceedings on foot in the Federal Court of Australia under s 179 of the Bankruptcy Act 1966 (Cth) that could render orders exorbitant or otiose – whether primary judge should have exercised discretion against making orders whilst the decision in the Federal Court proceedings was still pending Legislation Cited: Bankruptcy Act 1966 (Cth), ss 19, 58(1), 116, 153A, 154, 167, 179 Bankruptcy Regulations 1996 (Cth), reg 8.12E Civil Procedure Act 2005 (NSW), s 56(1) Conveyancing Act 1919 (NSW), ss 66F, 66G Real Property Act 1900 (NSW), s 90 Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Cain v Cain [2007] NSWSC 623; 13 BPR 24,963 Callahan v O'Neill [2002] NSWSC 877 Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712 Grizonic v Suttor [2004] NSWSC 137; 12 BPR 22,797 Hogan v Baseden (1997) 8 BPR 15,723 Pascoe v Dyason [2011] NSWSC 1217 Rambaldi v Woodward [2012] NSWSC 434 Ross v Ross [2010] NSWCA 301; 15 BPR 28,945 Stephens v Debney [1960] SR (NSW) 468 Tory v Tory [2007] NSWSC 1078 Williams v Legg (1993) 29 NSWLR 687 Category: Principal judgment Parties: Nida Ferella (First Appellant) Gustavo Ferella (Second Appellant) The Official Trustee in Bankruptcy (First Respondent) The Registrar General (Second Respondent) Representation: Counsel: Mr RK Newton (First and Second Appellants) Mr T Lynch SC (First Respondent)