Beadle in Her Capacity as trustee of the Bankrupt Estate of Nyoni v Nyoni
[2019] FCCA 1723
•20 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEADLE IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF NYONI v NYONI & ANOR | [2019] FCCA 1723 |
| Catchwords: BANKRUPTCY – Application seeking the sale of a property that is in the joint names with the bankrupt – application for an adjournment refused - appropriate matter in which to make orders to assist the trustee in recovering the property for the benefit of the creditors. |
| Legislation: Bankruptcy Act 1966 (Cth), s.27 |
| Applicant: | KRISTEN BEADLE IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF NYONI |
| First Respondent: | AMIRA NYONI |
| Second Respondent: | EMSON NYONI |
| File Number: | PEG 663 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 20 June 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms K Britton Dentons |
The Second Respondent appeared in person.
ORDERS
The application for an adjournment and the application in a case filed 31 May 2019 is dismissed.
A declaration that the Applicant of the one part and the First Respondent of the other part are the beneficial owners as tenants-in-common in equal shares of the property known as 6 Bedford Street, Kellerberrin in the state of Western Australia, being the whole of the land contained in certificate of title Lot 101 on diagram 98332, Volume 2178, Folio 990 (“6 Bedford Street”).
The First and Second Respondents deliver up vacant possession of 6 Bedford Street together with the duplicate Certificate of Title for that property to the Applicant within 30 days from the date of this order.
The First and Second Respondents deliver up all keys and security codes for all buildings and improvements on 6 Bedford Street to the Applicant within 30 days from the date of this order.
The First and Second Respondents remove from 6 Bedford Street all vehicles, rubbish and chattels which have not vested in the Applicant within 30 days from the date of this order.
In the event that the First and Second Respondents fail to comply with order 5, the Applicant may remove and dispose of the property referred to in that order as she sees fit after 30 days have passed from the date of this order.
A Property (Seizure and Delivery) Order pursuant to the Civil Judgments Enforcement Act 2004 (WA) ("PSDO") issue in respect of 6 Bedford Street in favour of the Applicant, such PSDO to lie in the Registry until the filing by the Applicant, not before 30 days from the date of this Order, of an affidavit stating that the First and Second Respondents have not given vacant possession of 6 Bedford Street upon which the PSDO be issued forthwith to the Applicant.
The First Respondent and Second Respondent provide a withdrawal of caveat, in registrable form, for caveat number M278626 (Caveat) registered on the title of the Property within 7 days.
If the First Respondent and Second Respondent should fail or refuse to provide a withdrawal of caveat, in registrable form, for the Caveat, the Registrar or Deputy Registrar of the Court shall be authorised to sign and register any necessary documents in order for the order sought in order 7 to be given effect.
Pursuant to sections 30(1) and 77( 1 )(g) of the Act and section 126 of the Property Law Act 1969 (WA), the Applicant:
(a)have the sole conduct of the sale of 6 Bedford Street and be authorised to instruct an agent or auctioneer for the purpose of the sale of 6 Bedford Street;
(b)may solely decide whether 6 Bedford Street is to be sold by public auction or private treaty;
(c)may solely decide whether or not to set a reserve for any auction of 6 Bedford Street and, if so, at what price having regard to any advice received from a licenced valuer; and
(d)be empowered to sign any contract of sale, transfer and any other documents on behalf of the First Respondent necessary to give effect to the sale of 6 Bedford Street, in the event that the First Respondent does not sign such documents within such time as required by the Applicant's solicitors.
The Applicant is authorised and empowered to sign on behalf of the First Respondent any contract of sale, discharge of mortgage authority, Transfer of 6 Bedford Street or any other documents required to effect a sale of 6 Bedford Street, in the event the First Respondent refuses, fails or neglects to sign such documents within such time as required by the Applicant's solicitors.
The First Respondent has liberty to bid at any auction sale of 6 Bedford Street, or to submit an offer to purchase 6 Bedford Street provided the bid or offer is genuine and the First Respondent has approved funding to be able to complete the purchase.
The proceeds of the sale of 6 Bedford Street be disbursed as follows:
(a)First, in payment of all selling costs including agent commissions, advertising and marketing expenses, conveyancing and legal costs associated with the sale and in discharging any encumbrances against the title to 6 Bedford Street;
(b)Secondly, half of the then available proceeds to be paid to the First Respondent; and
(c)Thirdly, all remaining proceeds to be paid to the Applicant as Trustee of the Bankrupt Estate of Emson Clever Nyoni.
The First Respondent pay the Applicant's costs of these proceedings in so far as they relate to 6 Bedford Street, such costs to be taxed if not agreed.
There be liberty to apply on 48 hours' written notice to the other parties.
DATE OF ORDERS: 20 June 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 663 of 2018
| KRISTEN BEADLE IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF NYONI |
Applicant
And
| AMIRA NYONI |
First Respondent
| EMSON NYONI |
Second Respondent
REASONS FOR JUDGMENT
These are proceedings within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”) that were commenced on 12 December 2018 by the trustee in bankruptcy of the second respondent. The applicant is seeking the sale of a property that is in the joint names of the bankrupt, second respondent, and his wife, the first respondent. The matter was the subject of orders made on 17 May 2019 by this Court, fixing the matter for hearing today.
An application in a case was filed on 31 May 2019 seeking an adjournment of the proceedings and a protracted timetable by the second respondent. At the commencement of the hearing, the Court heard the second respondent in relation to the adjournment application. The second respondent indicated that he had exams which he wished to attend and asserted he did not have material with him which he wished to have available for the proceedings today. The Court is satisfied that the first respondent is aware of these proceedings and she is a necessary party to the proceedings.
Orders have earlier been made by Judges of this Court giving the respondents ample opportunity to put on affidavit evidence if they wished to do so. Bankruptcy proceedings are proceedings which by their nature and under the Act must be dealt with expeditiously. Nothing said by the second respondent identified any proper basis upon which the proceedings should be adjourned, given the respondents have had ample opportunity to put on any material that was relevant. No relevant material has been identified that would be provided if an adjournment was granted. The Court has also taken into account the nature of these proceedings and the want of merit in the opposition to the orders sought.
The Court is not satisfied an adjournment was warranted in the interests of the administration of justice. It is for these reasons the application case was dismissed.
Affidavit evidence has been read identifying the title of the applicant as a result of the vesting of property upon bankruptcy in the applicant in respect of the relevant property. The Court is satisfied this is an appropriate matter in which to make orders to assist the trustee in recovering the property vested in the trustee for the benefit of the creditors. The orders proposed made appropriate provision for preserving the first respondent’s interests in the proceeds of sale. The Court is satisfied it is appropriate to make the orders in a form substantially in the nature of that identified in the application and it is also appropriate to make appropriate orders to ensure compliance with the Court’s orders.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 17 July 2019
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