An appeal is a separate proceeding from the primary action for the purposes of s 237 of the Corporations Act 2001 (Cth), and leave to bring a derivative action at first instance does not extend to the conduct of an appeal unless the original order expressly so provides. Where a bankrupt appellant's trustee fails to elect to prosecute or discontinue an appeal within 28 days of service of notice under s 60(3) of the Bankruptcy Act 1966 (Cth), the appeal is deemed abandoned and the appropriate order is to strike out the notice of appeal.
The full text is available to signed-in members, including the 1 later case that cites this judgment.