Smits v Unicomb; Smits & Mahommed v Unicomb [2016] NSWDC 26

District Court New South Wales

Medium Neutral Citation: Smits v Unicomb; Smits & Mahommed v Unicomb [2016] NSWDC 26 Hearing dates: 15 March 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Civil Before: Judge Levy SC Decision: In each case, the proceedings are stayed and transferred to the inactive list pending the resolution of bankruptcy proceedings involving Mr Smits Legislation Cited: Bankruptcy Act 1966 (Cwth), s 60(2) Category: Procedural and other rulings Parties: Leonardus Gerardus Smits (Plaintiff in both proceedings)

Peter Shah Mahommed (Purported second plaintiff in 2014 proceedings)

Michael Charles Unicomb (Defendant in both proceedings) Representation: Mr Smits – in person by leave Mr Mahommed – in person Mr Foley solicitor for the defendant in both proceedings File Number(s): 2015/226676 & 2014/325866 Publication restriction: None

Judgment

Background 1. These two proceedings have a long history of controversy based upon disputed financial transactions. This has resulted in multiple actions issued in various courts, which have included many interlocutory motions. 2. The present listing essentially concerns the ability of a person who has been purportedly joined as an additional plaintiff, to continue to take active steps in the proceedings following the bankruptcy of the initially named plaintiff, and in lieu of that plaintiff.

Proceedings numbered 2015/226676 – Smits v Unicomb 1. In proceedings numbered 2015/226676, between the plaintiff, Mr Smits, and Mr Unicomb as defendant, it is common ground that consequent upon Mr Smits having been declared bankrupt on 21 January 2016, these particular proceedings must be stayed by reason of the operation of s 60(2) of the Bankruptcy Act 1966 (Cwth). 2. The consequence of that result is that these proceedings must be placed in the court's inactive list pending a determination or an election by Mr Smits' trustee in bankruptcy, or the further order of the Federal Court of Australia, as to whether the proceedings may be carried forward, or must remain stayed. 3. That position will therefore be reflected in my orders, with liberty reserved to any interested party to apply to the Registrar to have the proceedings restored to the active list at any appropriate time.