The Court held that Holly's proceeding was deemed abandoned under s 60(3) of the Bankruptcy Act where the trustee failed to elect to prosecute within 28 days of notice, and that Holly lacked standing to continue the proceeding because any beneficial interest she claimed in the property vested in her trustee in bankruptcy under ss 58 and 116. The Court refused to dismiss Fuan's claim for want of prosecution, finding that while Fuan was in default of court orders, his advanced age, inability to speak English, self-represented status, and the proximity of a listed trial date meant that dismissal was not demanded by justice, and instead bifurcated the counterclaim so that mesne profits and damages would be heard separately. The Court confirmed that s 58(3)(b) of the Bankruptcy Act does not apply to a bankrupt who is a plaintiff rather than a creditor, and that claims for mesne profits brought before recovery of possession may be premature following RT Co and Richardson.
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