An appeal or application for leave to appeal that is deemed abandoned under s 60(3) of the Bankruptcy Act 1966 (Cth) may be dismissed, unlike first instance proceedings where dismissal is generally refused to preserve the bankrupt's right to re-litigate after discharge. The distinction is that an abandoned appeal simply leaves the decision below standing, so the re-litigation concern does not arise. Costs of the abandoned appeal are payable by the bankrupt personally and are not provable in the bankruptcy. A court will decline to fix costs as a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 where the bill of costs contains items that should not be allowed and the court cannot make a genuine estimate of proper fees.
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