Burness v TALIAULI
[2011] FMCA 910
•10 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURNESS v TALIAULI | [2011] FMCA 910 |
| BANKRUPTCY – Application for vacant possession of property – failure to annul bankruptcy – application successful. |
| Bankruptcy Act 1966 (Cth), ss.19, 30, 30(1), 58, 77(1)(g) |
| Holmes v Dillon & Ors (No.2) [2010] FMCA 399 |
| Applicant: | PAUL ANDREW BURNESS |
| Respondent: | KOLOSAINI TALIAULI |
| File Number: | MLG 1527 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 10 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harrison |
| Solicitors for the Applicant: | Marsh & Maher |
THE COURT ORDERS UNDEFENDED THAT:
The respondent deliver up to the applicant vacant possession of the property situate at and known as 15 The Avenue, Narre Warren South in the State of Victoria, being the whole of the property contained in certificate of title volume 10519 folio 441 (“the property”), within 21 days of the date of these orders.
The respondent deliver up all keys for all buildings and improvements on the property to the applicant within 21 days of the date of these orders.
In the event that the respondent fails to deliver up vacant possession of the property in accordance with the orders above a warrant of possession will issue forthwith in favour of the applicant.
The respondent must remove from the property all personal property being vehicles, rubbish and any other chattels (“personal property”) which are not vested in the applicant within 21 days of the date of these orders.
In the event that the respondent fails to comply with order 4 the applicant is empowered to remove and dispose of the personal property on the property as he sees fit.
The respondent do all things as may be reasonably required by the applicant, his selling agent or his solicitors for the purpose of achieving a sale of the property including providing access to buildings on the property and for the purpose of valuation and viewing by potential purchasers.
The applicant’s costs of this proceeding be paid in priority out of the property of the bankrupt estate of the respondent.
Liberty to either party to apply on three days’ notice.
The applicant notify the respondent of these orders by posting them by 5:00pm on 11 November 2011 by prepaid ordinary post enclosed in an envelope addressed to the respondent at 15 The Avenue, Narre Warren South.
IT IS DIRECTED THAT:
The Minute of Proposed Orders marked ‘Exhibit A’ be placed upon the Court file.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1527 of 2011
| PAUL ANDREW BURNESS |
Applicant
And
| KOLOSAINI TALIAULI |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court this day on an application filed 21 October 2011. The orders sought are, in essence, orders which the Court makes this day.
The application is supported by a genuine steps statement filed the same date, an affidavit of service deposing as to personal service on
25 October 2011 (of the application; an affidavit of Mr Paul Andrew Burness and the applicant’s genuine steps statement) upon the respondent, by delivering such documents to him personally at his residential address at 15 The Avenue Narre Warren South in the State of Victoria.
The affidavit of service was filed on 4 November 2011 and is sworn by Carl Coppell, Process Server. I am satisfied that the respondent has been served with the application and is aware of the proceedings this day. The application itself, in its notice to the respondent, provides that at the court hearing this day, any of the following may happen:
a)the application may be heard;
b)directions may be given for the further conduct of the proceeding;
c)any application for interim orders may be heard.
The respondent was called outside the courtroom this day and failed to answer the call.
The applicant relies upon the affidavit sworn by Mr Paul Andrew Burness on 20 October 2011 in support of the orders that are sought. That affidavit confirms that on 17 October 2007 a sequestration order was made against the estate of the respondent. On that same date, the applicant was appointed the Trustee of the respondent’s bankrupt estate.
On the date of the commencement of his bankruptcy, the respondent was the registered proprietor of land at 15 The Avenue Narre Warren South in the State of Victoria being more particularly described in Certificate of Title volume 10519 folio 441.
Pursuant to s.58 of the Bankruptcy Act 1966 (Cth) (“the Act”) the property vested in the applicant on 17 October 2007. On 29 September 2009, the applicant transmitted the title of the property into his name as Trustee of the bankrupt estate.
Thereafter, the affidavit of Mr Burness sets out the various steps taken by the respondent in his search to obtain funds to enable an annulment of the bankruptcy and sets out the considerable communication had between the applicant, the respondent and the representatives of the respondent to achieve a satisfactory outcome of this matter. However, by 11 March 2011, it was clear that finance would not be provided to the respondent to enable an annulment of his bankruptcy.
In light of the persistent failure of the respondent to provide funds to annul his bankruptcy and in accordance with his duties under s.19 of the Act, the applicant determined to sell the property in Narre Warren South for the benefit of the respondent’s creditors.
To that end, he advised the respondent and his former solicitor to vacate the property by 7 September 2011, failing which he would issue legal proceedings to seek orders for vacant possession of the property. There has been no response to that communication, nor to subsequent communications of the applicant to the respondent.
The orders which the applicant seeks this day are orders necessary to obtain the best sale price for the property, and to provide for an orderly sale and marketing of the property. The Court has the necessary power to make the orders sought by the applicant, as set out in ss.30, 58 and 77(1)(g) of the Act.
I am satisfied that I should make orders for the delivery up of vacant possession of the property and note that sub-s.30(1) of the Act provides the Court with broad powers to make orders which carry out and give effect to the jurisdiction vested in the Court by the Act (Holmes v Dillon & Ors (No.2) [2010] FMCA 399, Jarrett FM, paragraph 26).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 23 November 2011
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