Reidy (Trustee of Buggy) v Reinisch

REASONS FOR JUDGMENT THE COURT: 1 This appeal is from a judgment of a single judge of the Court, given on 25 August 2010 in proceeding number NSD 1229 of 2009. The learned trial judge dismissed the application in that proceeding and ordered that the applicant pay the costs of the three respondents. The applicant in that proceeding is the appellant in this appeal. 2 While the appeal has been pending, the appellant has been declared bankrupt. On 25 March 2011, a sequestration order was made against the estate of the appellant. The trustee in bankruptcy is Geoffrey Philip Reidy. 3 On the same day on which the sequestration order was made, the solicitors for the respondent wrote to the trustee, advising him of the appeal. By operation of s 60(2) of the Bankruptcy Act 1966 (Cth), the appeal was stayed pending an election in writing by the trustee to prosecute or discontinue the proceeding. Section 60(3) provided that, if the trustee should not make an election within 28 days after the notice of the proceeding was served on him, he should be deemed to have abandoned the proceeding. The precise date of service of the notice is not known to the Court but, during the 28 days, the trustee made application to the Court to have the 28-day period extended. 4 By order made on 21 April 2011, an extension of that time was granted. Within the time extended, the trustee managed to effect a settlement of the appeal with the solicitors acting for the respondents. That settlement is contained in correspondence between solicitors acting on behalf of the trustee and the solicitors for the respondents. We have been asked to assume that a letter dated 29 April 2011, in which the trustee's solicitors finalised the agreement as to the terms of settlement, should operate as an election in writing by the trustee in bankruptcy to prosecute the appeal, to enable it to be settled. 5 Correspondence containing orders to which the parties have agreed has been forwarded to the Court. There was within the orders first proposed an inconsistency. It was sought to have the appeal dismissed, but nonetheless to have the costs order made by the primary judge set aside and an order substituted that would have the effect that there be no order as to costs in the proceeding at first instance. 6 We stood the matter down temporarily, while a telephone call was made to the solicitor for the respondents. We are satisfied that the parties now consent to orders that involve allowing the appeal in part, for the purpose of setting aside the costs order and substituting a new costs order in the first instance proceeding. 7 Accordingly, the orders we pronounce are not in the precise form in which they were proposed, but they have the same effect. We are satisfied that they have been made by the consent of the parties, to effect a settlement of the dispute between the bankrupt appellant and the respondents. 8 The orders that we make by consent are: