Macks as Trustee in Bankruptcy of the Estate of David Gerald Moore v Wilson

REASONS FOR JUDGMENT 1 This is an application for orders dismissing an appeal (Action Number 175 of 2004) and an application for leave to appeal (Action Number 176 of 2004). The application is made by the respondents to the appeal and application. 2 The appellant and applicant is a bankrupt. He was not a bankrupt at the time he filed and served the appeal and application on 6 August 2004. He was made a bankrupt when a sequestration order was made against his estate on 21 January 2005. The bankrupt's trustee in bankruptcy is Mr Peter Macks. 3 The trustee did not elect to prosecute the appeal or application within the time prescribed under the Bankruptcy Act 1966 (Cth) ('the Act') and the appeal and application are deemed abandoned. The trustee did apply for an extension of time within which to elect to prosecute the appeal and application but that was done to hold the situation pending the outcome of the bankrupt's challenge to his decision not to prosecute the appeal and application. It was clear that even though the trustee made that application he had decided not to prosecute the appeal and application. I have dealt with the bankrupt's application challenging the trustee's decision in a way unfavourable to the bankrupt. The trustee in bankruptcy no longer presses his application for an extension of time, and I will dismiss that application. 4 The trustee has control over the appeal and application and whether they are prosecuted: Cummings v Claremont Petroleum NL (1996) 185 CLR 124; s 60 of the Act. He consents to them being dismissed. I have power sitting as a single Judge to make orders for dismissal on this basis: s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) 5 For a more detailed description of the facts and relevant events I refer to my reasons for judgment in Moore v Macks [2007] FCA 10 ('the Moore v Macks judgment'). 6 By reason of his bankruptcy, the bankrupt had no right to appear before me. I heard submissions from him by leave. He opposes the orders dismissing the appeal and application. He submits that he has appealed from the Moore v Macks judgment and that I should not consider making the orders sought until that appeal is determined. At the end of his submissions he asked for an adjournment so that he could prepare further submissions and perhaps take legal advice. I reject that application. His role on this application is quite limited and, in fact, it might be said that absent any protection to the parties to the appeal, and in particular, the respondents, in terms of costs, the orders should be made simply having regard to the attitude of the trustee and the respondents. In any event, and on the assumption which I will make in his favour that I can have regard to his submissions, he has had ample opportunity to make submissions both yesterday and on prior occasions. Furthermore, the interests of the respondents must be considered. The appeal and application have been outstanding for a considerable period of time and the respondents are entitled to a measure of certainty in the ordering of their affairs and to a determination which will prevent the incurring of further costs. 7 In this case, the fact of an appeal from the Moore v Macks judgment is not a reason not to make the orders sought, or, if it is, it is clearly outweighed by the other relevant considerations. Orders should be made dismissing the appeal and application for leave to appeal.