Liristis v Gadelrabb

No appearance by applicant Mr P J Webb (Respondent) Solicitors:

Applicant self-represented Meridian Legal (Respondent) File Number(s): CA 2008/280586 Decision under appeal Jurisdiction: 9111 Date of Decision: 2011-06-20 00:00:00 Before: Ward J File Number(s): SC 2006/259403; 2008/278152

Judgment 1BASTEN JA: The applicant seeks to invoke the jurisdiction of this Court to appeal against a judgment of Ward J in the Equity Division given on 20 June 2011. Leave to appeal is required and the application for leave is presently listed for hearing on 5 December 2012. 2The interlocutory steps taken so far have a long history which need not be recounted. The matter last came before me on 27 September 2012, primarily on an application by the respondent to have the proceedings dismissed as abandoned, pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth). For that purpose, the respondent relied upon the undisputed fact that Mr Liristis is bankrupt and that his trustee in bankruptcy had failed to make an election pursuant to s 60(2). Accordingly the proceedings were stayed. 3The application made on 27 September 2012 was dismissed because it had not been shown that the trustee had had notice of the action for a period of 28 days: Liristis v Gadelrabb [2012] NSWCA 327. However, I granted leave to the respondent to bring the matter back before me for further hearing of her motion. She now seeks to renew her application on the basis of further evidence demonstrating that the trustee did in fact have notice of the proceedings in this Court no later than 27 September 2012. There being no evidence of an election by the trustee, and the 28 day period for such an election having expired, the application is deemed to have been abandoned by 26 October 2012 and should be dismissed. 4Mr Liristis has not appeared in Court on this occasion. He appeared in person on 27 September 2012. He has, however, filed a notice of motion by facsimile seeking a stay of "these proceedings" on the basis that s 60(3) of the Bankruptcy Act does not operate. He also seeks to have the date presently fixed for hearing of the leave application, namely 5 December 2012, vacated. 5Mr Liristis has sworn an affidavit of today's date in which he asserts that he is "currently on medical leave" and has, since 8 October 2012, been undergoing medical treatment which will not be completed until 27 November 2012. Annexed to the affidavit is a copy of a "medical certificate", issued by Dr Saeed of Lakemba on a Centrelink form. It notes a number of medical conditions and asserts that Mr Liristis has been "unfit for court/work/study from 8/10/2012 to 27/11/2012". It says nothing about the ongoing medical treatment. There is no information before me as to the nature of that treatment. 6One of the conditions identified in the certificate, namely "anxiety, depression, headaches" is said to be permanent. That would appear not to be the basis on which the period of unfitness was determined. The prognosis is, curiously, said to be "uncertain". Mr Liristis is also said to suffer from chest pain, tiredness and fatigue. The prognosis in that respect is also said to be "uncertain". There is a further condition which is said to be temporary and does not identify any prognosis. The certificate is dated 8 October 2012. 7The certificate does not satisfy me that there is any reason why Mr Liristis could not be at Court today because of his medical condition. The separate assertion that he cannot be here because he is undergoing medical treatment is unsupported by any certificate from a treating doctor; the form of the treatment is unknown. I am not satisfied that ongoing medical treatment prevents Mr Liristis being here today. 8It is true that the respondent has not, as Mr Liristis notes in his affidavit, filed a notice of motion in relation to this morning's application but Mr Liristis is well aware of the notice of motion of 24 August 2012, which was the subject of the hearing on 27 September 2012 and which was stood over with liberty to apply to bring the matter back before me. Further, he has been provided with a copy of an affidavit of Ms Abood upon which the respondent relies in order to establish the basis for the orders sought, which she was unable to establish on the prior occasion. Accordingly, I am satisfied that Mr Liristis is properly informed as to the nature and basis of the application before the Court this morning. 9Although the notice of motion filed by Mr Liristis does not expressly seek an adjournment of this morning's application I take it from his affidavit that such an order is implicitly sought. In the circumstances set out above, I am not satisfied that the interests of justice require that the further hearing of the respondent's motion of 24 August 2012 should be adjourned. I propose to deal with the matters raised. 10The evidence now discloses a sufficient basis on which the Court may be satisfied that the trustee has had notice of the proceedings in this Court for a period in excess of 28 days. I am also satisfied that the trustee has not made an election in writing to prosecute or discontinue the action. It follows that the proceedings are deemed to have been abandoned pursuant to s 60(3). 11In his notice of motion Mr Liristis refers to s 60(4) of the Bankruptcy Act and, I infer, seeks to suggest that these proceedings are exempt from the operation of sub-s (3) because they are proceedings involving a "personal injury or wrong done to the bankrupt". 12The exemption in s 60 for proceedings of that kind follows from the terms of s 116(2)(g) of the Bankruptcy Act, which says that the designation of property divisible among creditors does not extend to certain property which includes "any right of the bankrupt to recover damages or compensation... for personal injury or wrong done to the bankrupt" and other members of the bankrupt's family. 13There is a long history to the construction of this provision. It is sufficient for present purposes to note that the matter was dealt with by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48; 52 CLR 713. It was also dealt with by Lockhart J in Faulkner v Bluett (1981) 52 FLR 115 stating at 119, in reference to cases dealing with the exceptions to the rule that rights of action generally pass to the trustee of a bankrupt's estate: "The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt.... Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt." 14The passage was approved by the Full Court in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 at 547 (Lockhart J) and 562 (O'Loughlin and Merkel JJ). 15The present proceedings do not involve interests personal to the bankrupt or to his feelings. The proceedings relate to interests in a house on the land of the respondent and the contents of the house which were said to have been the subject of certain contractual arrangements. Such proceedings do not fall within the exemption in s 60(4) of the Bankruptcy Act. Accordingly, I am satisfied that these proceedings do fall within the terms of sub-s (3) and are deemed to have been abandoned. 16So far as the costs of the proceedings in this Court are concerned, counsel for the respondent concedes that there is no purpose in making an order against Mr Liristis himself. The trustee has not made an election or sought to be heard in these proceedings and no order is sought against him. Accordingly, there is no need to make any order as to costs. 17I note that Mr Liristis states in his documents that the property was vacated by him in September. That proposition is not disputed by the respondent but she does note that there were arrears of the occupation fee required to be paid by Mr Liristis as a condition of a stay which I had ordered on 20 July 2011. Those arrears, I am told from the bar table, have not been paid. No further steps are sought to be taken in relation to that matter and I do not propose to deal with it further. 18There is, however, a question in respect of the stay. It is clearly appropriate that it be lifted in order for further orders to be made disposing of these proceedings. 19There is also a question as to the hearing date for the leave application which is presently fixed as 5 December 2012. Needless to say there is no opposition from the respondent to the vacation of that date. 20Accordingly, I make the following orders: (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.