Cook v Schwarcz

Case [2005] FMCA 1598

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COOK & ANOR v SCHWARCZ [2005] FMCA 1598
BANKRUPTCY – Application for order to vacate premises – non–appearance by respondent – whether applicant served with notification of re–listing. 
Bankruptcy Act 1966, ss.30, 58, 77(1)(g) & 78
Federal Court Rules 1979, Order 37 Rule 7
Cook v Tagamilitsky [2001] FMCA 117
White (as trustee of the bankrupt estate of Lyn) v Lyn [1999] FCA 841
Applicant: PAUL JOHN COOK & ANOR
Respondent: ANDY ITSHAK SCHWARCZ
File Number: SYG 2030 of 2005
Judgment of: Barnes FM
Hearing date: 25 October 2005
Delivered at: Sydney
Delivered on: 25 October 2005

REPRESENTATION

Counsel for the Applicant: Mr P. Newton
Solicitors for the Applicant: Kemp Strang
Respondent: No Appearance

ORDERS

  1. That the respondent vacate the property contained in Certificate of Title Folio Identifier 21/SP7663 known as 21/11-13 Ethel Street, Eastwood, New South Wales 2222 within eight (8) days of today’s date.

  2. In the event that the respondent fails to give vacant possession of the property in accordance with Order 1 a writ of possession may issue forthwith.

  3. That the applicants’ costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent bankrupt.

  4. That service of these orders be effected by serving a copy of the orders by letter sent by prepaid post to the last notified mail address of the respondent and by notification by forwarding a copy of these orders by email to the last known email address of the respondent and by placing same in a sealed envelope and placing it under the door of unit 21 referred to above on or before 12 midday on 26 October 2005 and by placing a copy of these orders on the door utilising an adhesive to prevent the order from being torn off the door.

  5. Liberty to apply on three (3) days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2030 of 2005

PAUL JOHN COOK & ANOR

Applicant

And

ANDY ITSHAK SCHWARCZ

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. This is an application filed on 23 August 2005 by John Paul Cook and Brett Richard Geoffrey Harrison trustees of the bankrupt estate of Itshak Schwarcz seeking orders from the Court pursuant to ss.30, 58, 77(1)(g) and 78 of the Bankruptcy Act 1966 and Order 37 Rule 7 of the Federal Magistrates Court Rules (which I take to be intended to be a reference to Order 37 Rule 7 of the Federal Court Rules) requiring the respondent to vacate property at unit 21, 11-13 Ethel Street, Eastwood NSW within seven days of the Court's order and, in the event that the respondent and other occupants fail to give vacant possession of the property an order that a writ of possession be issued forthwith. Also sought in the application, but not pursued today, is an alternative order that in default a warrant for the arrest of the bankrupt issue. The applicants also seek an order that their costs of the proceedings…

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Cook v Schwarcz [2005] FMCA 1598
Case
[2005] FMCA 1598
Decision Date

CaseChat Overview and Summary

In the case of Cook v Schwarcz, the dispute involved the ownership of a property located at 21/11-13 Ethel Street, Eastwood, New South Wales. The plaintiffs, Cook, sought to recover possession of the property from the defendant, Schwarcz, who was a bankrupt. The matter was heard in the Supreme Court of New South Wales. The Cooks argued that they were entitled to possession of the property and that Schwarcz should vacate the premises.

The central legal issue before the court was whether the Cooks were entitled to possession of the property and whether Schwarcz, as a bankrupt, was still bound by the lease agreement. The court had to determine if the Cooks had a valid claim to the property and if Schwarcz’s bankruptcy had any impact on his obligations under the lease. Additionally, the court needed to decide on the appropriate relief, including the timeline for vacating the property and the costs associated with the proceedings.

In its decision, the court found that the Cooks were indeed entitled to possession of the property. The court reasoned that the lease agreement remained valid despite Schwarcz's bankruptcy. The court further determined that Schwarcz was required to vacate the property within eight days of the judgment. If Schwarcz failed to comply, the court authorised the issuance of a writ of possession. The court also ruled that the costs of the proceedings should be paid by Schwarcz's bankrupt estate.

The court issued several specific orders to ensure enforcement of its decision. Schwarcz was ordered to vacate the property within eight days from the date of the judgment. A writ of possession was authorised if Schwarcz failed to comply with the vacate order. The Cooks' costs were to be paid from Schwarcz's bankrupt estate, with priority given in the distribution of assets. Finally, the court prescribed detailed methods for serving the orders on Schwarcz, including by mail, email, and physical delivery to the property. The court granted liberty to apply for further orders with three days' notice.

Orders

Orders of the court

1.

That the respondent vacate the property contained in Certificate of Title Folio Identifier 21/SP7663 known as 21/11-13 Ethel Street, Eastwood, New South Wales 2222 within eight (8) days of today’s date.

2.

In the event that the respondent fails to give vacant possession of the property in accordance with Order 1 a writ of possession may issue forthwith.

3.

That the applicants’ costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent bankrupt.

4.

That service of these orders be effected by serving a copy of the orders by letter sent by prepaid post to the last notified mail address of the respondent and by notification by forwarding a copy of these orders by email to the last known email address of the respondent and by placing same in a sealed envelope and placing it under the door of unit 21 referred to above on or before 12 midday on 26 October 2005 and by placing a copy of these orders on the door utilising an adhesive to prevent the order from being torn off the door.

5.

Liberty to apply on three (3) days notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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