Dixon as trustee of the Bankrupt Estate of Dib v Dib

[2019] FCCA 1800

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIXON AS TRUSTEE OF THE BANKRUPT ESTATE OF DIB v DIB [2019] FCCA 1800

Catchwords:
BANKRUPTCY – Application for delivery of motor vehicle.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 77, 30

Federal Circuit Court of Australia Act 1999 (Cth), s.78

Federal Circuit Court of Australia Rules 2001 (Cth), r.29.11

Cases cited:

Coshott v Prentice [2014] FCAFC 88

Applicant: STEPHEN ROBERT DIXON AS TRUSTEE OF THE BANKRUPT ESTATE OF GHASSAN DIB

Respondent: GHASSAN DIB

File Number: SYG 377 of 2019

Judgment of: Judge Obradovic

Hearing date: 5 June 2019

Date of Last Submission: 5 June 2019

Delivered at: Parramatta

Delivered on: 28 June 2019

REPRESENTATION

Counsel for the Applicant: M Elliott

Solicitors for the Applicant: CLH Lawyers

Appearing for the Respondent: No appearance

ORDERS

1. The Respondent shall forthwith give possession of the following motor vehicle (the Vehicle) to the Applicant

   Make:    Lamborghini 

   Model:  Gallardo L140

   Year  2012

   Registrarion:BSD46Y

   pursuant to Sections 30(1), 77(1)(g) and 129(2) of the Bankruptcy Act 1966 (Cth)

2. Pursuant to Section 78(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and Rule 29.11 of the Federal Circuit Court of Australia Rules 2001 (Cth) that a writ of delivery issue forthwith directing the Sheriff to seize the Vehicle and deliver it to the Respondent, such writ to be in the form initialled by me, dated this day and placed with the papers.

3. Pursuant to Section 78(2) of the Federal Circuit Court of Australia Act 1999 (Cth) the Sheriff be authorised to enter the premises at:

   (a)12 Maxwell Close, Illawong NSW 2234;

   (b)Stromboli House, Suite 4, 434 Chapel Road, Bankstown, NSW 2200; and

   (c)114 Georges River Road, Kentlyn, NSW 2560,

   for the purpose of taking possession of the Vehicle under the writ of delivery.

4. Pursuant to r. 1.06 of the Federal Circuit Court Rules 2001 (Cth) any requirement that the Applicant file an Application in a Case and a supporting affidavit seeking the relief herein be dispensed with.

5. Order that the Applicant’s costs of these proceedings (including the Applicant’s costs of the substituted service application) be costs in the bankrupt estate of the Respondent.

6. Liberty to restore on 3 days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 377 of 2019

STEPHEN ROBERT DIXON AS TRUSTEE OF THE BANKRUPT ESTATE OF GHASSAN DIB

Applicant

And

GHASSAN DIB

Respondent

REASONS FOR JUDGMENT

1. The respondent is a bankrupt. The applicant is the trustee in bankruptcy of the respondent’s bankrupt estate. The applicant was appointed trustee on 4 April 2018.

2. Contrary to his obligations pursuant to s 77(1)(g) Bankruptcy Act 1966 (Cth) the respondent has failed to deliver up a 2012 Lamborghini Gallardo (Reg No.BSD46Y) which the respondent was the registered owner of at the relevant time. By virtue of s 58(1) of the Act, all of the respondent’s interest in the motor vehicle vested in the applicant upon the making of the sequestration order on 4 April 2018.

3. On 20 August 2018, following earlier correspondence between the parties (or on their behalf) the applicant issued a letter of demand for the motor vehicle. No response was received to this letter of demand or further correspondence dated 28 August 2018 requiring the respondent to confirm the location of the motor vehicle so that it could be collected by the applicant.

4. Proceedings for possession of the motor vehicle were commenced on 20 February 2019. On 2 April 2019 the Court made a number of orders, including orders for the respondent, who was legally represented that day, to file and serve a Response and Affidavit.

5. The respondent has not complied with the Court orders for the filing of his documents made on 2 April 2019. The matter was listed for hearing at 10.15am on 5 June 2019. The respondent did not appear and consequently the matter proceeded against the respondent on an undefended basis.

6. Section 30(1) of the Bankruptcy Act 1966 provides that the Court:

   a)has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

   b)may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

7. The Court has the power to make an order for possession and consequential relief: Coshott v Prentice [2014] FCAFC 88 at [91]-[94].

8. The Court is satisfied that circumstances exist for the writ of delivery to be made. The respondent has not filed any defence to the applicant’s claim for possession. Secondly, the value of motor vehicle is depreciating and consequently absent any payments being made to the financier, any equity in the motor vehicle will continue to reduce. Thirdly, the respondent has failed to deliver up possession of the motor vehicle since his bankruptcy on 4 April 2018 and despite requests and demands that he do so.

9. The Court is satisfied that the vehicle is likely to be located at the following:

   a)the respondent’s last known residential address;

   b)the respondent’s work address; or

   c)the last known location of the motor vehicle.

10. If the vehicle is unable to be located or other issues arise, liberty to restore the matter to the list is granted.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 28 June 2019