Debrossard & Official Trustee in Bankruptcy - [2011] FamCA 648

FAMILY COURT OF AUSTRALIA

DEBROSSARD & OFFICIAL TRUSTEE IN BANKRUPTCY

[2011] FamCA 648

FAMILY LAW - PROPERTY – Where consent orders provided for the former matrimonial home to be transferred into the wife’s name following the husband being declared bankrupt – Where Official Trustee sought orders that consent orders be set aside - Where consent orders were subsequently set aside – Where wife seeks orders that the consent orders be reinstated – Contributions – Division of property between the wife and the Official Trustee - Whether Official Trustee should be empowered to act as trustee for the sale of the property.

Family Law Act 1975 (Cth) – s 75(2), s 75(2)(ha), s 79, s 79(1), s 79(2), s 79(4),
Bankruptcy Act 1966 - s 58(1), s 116
Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Lee Steere and Lee Steere (1985) FLC 91-626
Trustee of the property of G Lemnos (a bankrupt) v Lemnos and Another (2009) 41 Fam LR 120

APPLICANT:

Ms Y Debrossard

RESPONDENT:

Official Trustee in Bankruptcy

FILE NUMBER:

WOC

799

2007

DATE DELIVERED:

19 August 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

25 February 2011

REPRESENTATION

FOR THE APPLICANT:

Ms Y Debrossard in person

COUNSEL FOR THE RESPONDENT:

Mr Combe

SOLICITOR FOR THE RESPONDENT:

Sally Nash & Co

Orders

That Ms C and Mr M of Insolvency Trustee Service Australia (“ITSA”), 4/201 Elizabeth Street, Sydney, New South Wales or other employees of ITSA be appointed trustees (“the Trustees”) for the sale of the property being the whole of the land contained in folio identifier … situate at … B Street, Town 1, New South Wales (“the property”).
That the property vest forthwith in the said Trustees subject to any legal encumbrances affecting the entirety thereof and free of any encumbrances affecting any undivided shares therein to be held upon the statutory trust for sale as if such statutory trust for sale had been created pursuant to Division 6 of Part IV of the Conveyancing Act 1919 (NSW).
That Ms Y Debrossard shall give vacant possession of the property not later than 21 days prior to the date for completion under the contract for sale of the property.
That Ms Y Debrossard shall be responsible for all mortgage repayments, rates, insurances and other outgoings in respect of the property pending completion of the sale.
That Ms Y Debrossard maintain the property in a clean and tidy condition, co-operate at all times with the requests of the Trustees including co-operating with real estate agents, tradesmen and any agent of the Trustees and make the property available for inspection by prospective purchasers at all reasonable times.
That the said Trustees be empowered to offer the property for sale and to sell the property by public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Debrossard & Official Trustee in Bankruptcy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FamCA 648
Decision Date: 19 August 2011

CaseChat Overview and Summary

This matter concerned an application by Ms Y Debrossard and the Official Trustee in Bankruptcy, representing the bankrupt estate of Mr I Debrossard, before Johnston J. The dispute revolved around the sale of a property and the distribution of its proceeds.

The court was required to determine the terms upon which the property would be sold, the responsibilities of the parties pending the sale, and the method of distributing the net proceeds. Specifically, the court needed to establish who would act as trustee for the sale, how the sale would be conducted, and how the funds generated would be allocated between Ms Debrossard and the bankrupt estate.

Johnston J ordered the appointment of trustees from the Insolvency Trustee Service Australia to sell the property. The property was to vest in these trustees, subject to existing encumbrances. Ms Debrossard was ordered to provide vacant possession, cover all outgoings and mortgage repayments until completion, and maintain the property. The trustees were empowered to sell the property by public auction or private treaty, with specific provisions for setting a reserve price. The proceeds of sale were to be applied first to cover sale expenses, mortgage repayments, legal costs, taxes, and property upkeep. Thereafter, 60 percent of the remaining proceeds were to be paid to Ms Debrossard, and 40 percent to the Official Trustee for the bankrupt estate of Mr I Debrossard. The court also made orders regarding the execution of necessary documents and granted leave to relist the proceedings if required.

Orders

Orders of the court

That Ms C and Mr M of Insolvency Trustee Service Australia (“ITSA”), 4/201 Elizabeth Street, Sydney, New South Wales or other employees of ITSA be appointed trustees (“the Trustees”) for the sale of the property being the whole of the land contained in folio identifier … situate at … B Street, Town 1, New South Wales (“the property”).

That the property vest forthwith in the said Trustees subject to any legal encumbrances affecting the entirety thereof and free of any encumbrances affecting any undivided shares therein to be held upon the statutory trust for sale as if such statutory trust for sale had been created pursuant to Division 6 of Part IV of the Conveyancing Act 1919 (NSW).

That Ms Y Debrossard shall give vacant possession of the property not later than 21 days prior to the date for completion under the contract for sale of the property.

That Ms Y Debrossard shall be responsible for all mortgage repayments, rates, insurances and other outgoings in respect of the property pending completion of the sale.

That Ms Y Debrossard maintain the property in a clean and tidy condition, co-operate at all times with the requests of the Trustees including co-operating with real estate agents, tradesmen and any agent of the Trustees and make the property available for inspection by prospective purchasers at all reasonable times.

That the said Trustees be empowered to offer the property for sale and to sell the property by public auction at a reserve price to be agreed between the Trustees and Ms Y Debrossard and if a reserve price is not agreed after 7 days of the Trustees nominating a reserve price to Ms Y Debrossard in writing, at a reserve price to be nominated by the nominee of the President of the Real Estate Institute of New South Wales or, alternatively, to sell the property by private treaty at a price not more than 8 percent less than the reserve price.

That after the sale of the said property at auction or by private treaty, the Trustees shall apply the proceeds of sale to pay the following:

7.1. The commission, advertising and other expenses of real estate agents employed by the Trustees for sale of the property;

7.2. Repayment to Company 1 and Company 2 or other registered chargor over the property in discharge of any mortgage or charge;

7.3. The legal expenses of transferring the property to the purchaser;

7.4. Any taxes including but not limited to Capital Gains Tax, Land Tax and Goods and Services Tax associated with the sale of the property;

7.5. All necessary adjustments of rates and taxes on settlement of sale;

7.6. Insurance and other reasonable expenses for the protection, maintenance and upkeep of the property incurred prior to transfer to the purchaser;

7.7. 60 percent of the proceeds of sale after all expenses listed above to be paid to Ms Y Debrossard; and

7.8. 40 percent of the proceeds of sale after all expenses listed above to be paid to the Official Trustee as the trustee of the bankrupt estate of Mr I Debrossard.

That the parties shall execute all deeds and instruments necessary to give effect to these orders.

That in the event any party refuses, fails or neglects to execute any such deeds and instruments necessary to give effect to these orders, the Registrar of this Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the party and to do all acts and things necessary to give validity to the operation of such deed or instrument.

10.

That both parties have leave to relist these proceedings in relation to implementation of the orders.

11.

That all exhibits be released.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.