Moran v Minco Holdings Pty Ltd (in Liquidation)

[2022] WASCA 93

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Practice and procedure
3. › Bankruptcy of appellant after appeal instituted
4. › No election by trustee in bankruptcy to prosecute or discontinue appeal
5. › Deemed abandonment
6. › Whether appeal should be dismissed
7. › Bankruptcy Act 1966 (Cth), s 60(2), (3)
1. Practice and Procedure
2. › Costs
3. › Appeal dismissed following deemed abandonment under Bankruptcy Act
4. › Whether costs should follow the event
5. › Whether absence of determination on the merits warrants departure from ordinary costs rule
6. › Bankruptcy Act 1966 (Cth), s 60(3)

Quick Take

When an appeal is deemed abandoned under s 60(3) of the Bankruptcy Act 1966 (Cth) because the trustee in bankruptcy fails to elect to prosecute or discontinue within 28 days, the court will ordinarily formally dismiss the appeal and order costs against the appellant following the ordinary rule that costs follow the event. The fact that the appeal ended by operation of the Bankruptcy Act without a merits determination does not warrant departure from the ordinary costs rule. A costs order made after the sequestration order is not a provable debt and therefore does not require leave of the bankruptcy court under s 58(3).