Cook v Tagamilitsky

[2001] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COOK v TAGAMILITSKY [2001] FMCA 117

BANKRUPTCY – Application for order to vacate premises – where failure to conform precisely to order for substituted service because not sent by registered post until two days after date ordered – where respondent did receive documents by personal service – procedural defect excused – application granted.

Bankruptcy Act 1966 (Cth), ss.30, 58, 77G, 78, 129, 306(1)
Federal Court Rules, O 37, r 7

Applicant: PAUL JOHN COOK

Respondent: VERA TAGAMILITSKY

File No: SZ505 of 2001

Delivered on: 13 November 2001

Delivered at: Sydney

Hearing date: 13 November 2001

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: A. Fernon

Solicitors for the Applicant: Kemp Strang Solicitors

ORDERS

1. The respondent vacate the property, described as Lot 1 in Strata Plan 8878 at Lidcombe and having a street address of Unit 1, 17-19 Mary Street, Lidcombe, New South Wales, within 14 days of this order.

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. Service of this order be effected by placing the same in a sealed envelope and putting it under the door of Unit 1 on the date that this order is taken out and by placing a copy of this order on the door utilising an adhesive to prevent the order from being torn off the door.

4. The applicant's costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent.

5. Liberty to apply on two days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 71 of 2001

PAUL JOHN COOK

Applicant

And

VERA TAGAMILITSKY

Respondent

REASONS FOR JUDGMENT

1. In this matter by way of an application dated 28 August 2001, Paul John Cook, the trustee of the bankrupt estate of Vera Tagamilitsky, sought orders from the court pursuant to sections 30, 58, 77(G) and 78 of the Bankruptcy Act and Order 37 rule 7 of the Federal Court Rules, requiring the bankrupt respondent to vacate her property, Unit 1, 17-19 Mary Street, Lidcombe in the state of New South Wales which the trustee proposed thereafter to sell in accordance with his powers under section 129 of the Bankruptcy Act to realise the assets of the debtor.

2. That application was required to be served personally on the bankrupt and in his affidavit of 23 October 2001, Salvatore Roppolo, deposes to placing the order, the application and the affidavit in support under the front door of the premises on 22 October 2001.  This form of service was permitted pursuant to an order of Registrar Quinn of this court made following an application for substituted service on 16 October 2001.  Prior to that date, Darryl Arnolda, who swore an affidavit date 5 October 2001, had made several attempts to serve the application personally.  In particular, at paragraph 15 of his affidavit, he deposes to the fact that on 16 September 2001, he attended the…