Axess Debt Management Pty Limited v Archer

[2022] FedCFamC2G 512

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Axess Debt Management Pty Limited v Archer [2022] FedCFamC2G 512    

File number(s):	ADG 140 of 2022
Judgment of:	JUDGE YOUNG
Date of judgment:	16 June 2022
Catchwords:	BANKRUPTCY - application for appointment of trustee to take control of debtors property
Legislation:	Bankruptcy Act 1966 (Cth) s50
Division:	Division 2 General Federal Law
Number of paragraphs:	5
Date of hearing:	16 June 2022
Place:	Darwin
Solicitor for the Applicant:	Mr Sankey of Wallmans Lawyers
The Respondent:	No appearance

ORDERS

ADG 140 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AXESS DEBT MANAGEMENT PTY LTD

Applicant

AND:

SHANE RAYMOND ARCHER

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 JUNE 2022

THE COURT ORDERS THAT:

1.Pursuant to section 50 of the Bankruptcy Act 1966 (Cth) (“the Act”) Colin Louis Ambrose (hereafter “the Section 50 Trustee”) be appointed to take control of the Respondent’s property and such control to continue until this Honourable Court otherwise orders.

2.The Section 50 Trustee be indemnified as to his reasonable costs and expenses for and against the Respondent’s property and/or any proceeds of sale, all of which be hereby charged for that purpose.

3.The Applicant is to effect service of this Order along with a copy of each of the filed documents to date upon the Respondent within seven (7) days of this Order.

4.A copy of this order be provided by the Applicant Creditor to the Official Receiver within 2 days.

5.Liberty to the parties and the Section 50 Trustee to apply for further orders at short notice.

6.Costs of this application are reserved.

7.The matter be otherwise adjourned 6 July 2022 at 9:30am before Judge Brown.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application pursuant to s50 of the Bankruptcy Act 1966 (Cth) (“the Act”) for an order appointing a registered trustee, Mr Ambrose as trustee to take control of the debtor’s property in circumstances where the requirements of s50(1A) of the Act have been satisfied.

2. The background is that in 2018 a judgment by default was obtained against the creditor, Mr Archer, in a Magistrate’s Court in Melbourne, for the sum of $17,824 and an amount for interest and costs.  According to the affidavit of Mr Sankey on behalf of the applicant judgment creditor, the interest in respect of that debt has increased, as might be expected, and the total indebtedness claimed is approximately $26,000. 

3. The applicant creditor has become aware that the creditor is the joint owner of a house in Tasmania.  The creditor and another person jointly own 99 parts of 100 of the property and a Ms O’Toole, who it appears may be deceased, is the owner of the other part.

4. A caveat has been lodged against the title of the property on behalf of the judgment creditor. However, Mr Sankey says that his concerns are that there is no information about whether or not the sale is arm’s length and whether or not the price is one that is appropriate.  That information has apparently not been obtained from the agent.  There is mortgage over that property and Mr Sankey suggests that there is no indication of the level of indebtedness and how much equity there might be.  He says that the order sought is necessary to ensure the interests of all the creditors are protected, not simply his client.

5. I generally accept that the circumstances set out in the affidavit appear to support each of the submissions and contentions made by Mr Sankey. I am satisfied that the requirements in s50(1A) of the Act have been met and in particular, that there has been a bankruptcy notice served on the judgment creditor by registered post on 8 June 2022 along with a copy of the default judgment made on 14 September 2018.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge Young.

Associate:

Dated:       16 June 2022