Giasoumi v Walker

[2015] FCCA 2901

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIASOUMI v WALKER [2015] FCCA 2901

Catchwords:
BANKRUPTCY – Application for vacant possession.

Legislation:
Bankruptcy Act 1966, ss.30, 77(1)(g)
Federal Circuit Court (Bankruptcy) Rules 2006, rule 2.01

Applicant: NICHOLAS GIASOUMI AS TRUSTEE OF THE PROPOERTY OF DONNA MARIA WALKER (A BANKRUPT)

Respondent: DONNA MARIA WALKER

File Number: BRG 768 of 2015

Judgment of: Judge Jarrett

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Brisbane

Delivered on: 28 October 2015

REPRESENTATION

Solicitor for the Applicant: Ms Angove

Solicitors for the Applicant: CLH Lawyers

The Respondent appeared in person.

ORDERS

1. Pursuant to ss.30 and 77(1)(g) of the Bankruptcy Act1966 (Cth), the respondent deliver up vacant possession of the property known as 343 North Deep Creek Road, Gympie in the State of Queensland, more particularly described as Lot 4 on CP MPH 40461, County of March, Parish of Gympie contained in Indefeasible Title 18669038 to the applicant within twenty one (21) days of the date of this order.

2. In the event that the respondent fails to deliver up vacant possession of the property in accordance with order l, a writ of possession issue forthwith in favour of the applicant.

3. The respondent remove from the property all vehicles, rubbish and chattels which have not vested in the applicant within 21 days of the date of this order.

4. In the event the respondent fails to comply with order 3, the applicant may remove and dispose of any and all property the subject of order 3 as the applicant sees fit.

5. The applicant’s costs of this application be paid from the bankrupt estate of the respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 768 of 2015

NICHOLAS GIASOUMI AS TRUSTEE OF THE PROPOERTY OF DONNA MARIA WALKER (A BANKRUPT)

Applicant

And

DONNA MARIA WALKER

Respondent

REASONS FOR JUDGMENT

1. This is an application by a trustee in bankruptcy for orders compelling the respondent to vacate premises that she occupies against the trustee’s demands for possession.

2. The application is brought pursuant to ss.30 and 77(1)(g) of the Bankruptcy Act1966 and, consequently, rule 2.01 of the Federal Circuit Court (Bankruptcy) Rules 2006.

3. Ms Walker became bankrupt on 10 May, 2012 under a sequestration order issued by the Federal Magistrates Court at Melbourne on the petition of Baycorp Collections PDL (Australia) Pty Ltd.

4. The Applicant was appointed as trustee of Ms Walker’s estate in bankruptcy.

5. At the time of her bankruptcy, Ms Walker was a joint tenant in equal shares with Leonard Howarth of the property known as Lot 4 on Crown Plan MPH 40461 in the County of March, Parish of Gympie on Title Reference 18669038 and located at 343 North Deep Creek Rd, Gympie.  Upon her bankruptcy, her interest in that property vested in her trustee in bankruptcy.  A transmission of Ms Walker’s interest in the property was registered on the title to the Property on 30 April, 2015.

6. Ms Walker was discharged from bankruptcy on 22 June, 2015 by operation of law.  However, her interest in the property remains vested in and registered to the Applicant.  The Applicant can realise the property at any time prior to the re-vesting time which in this case is 22 June, 2021.

7. The evidence reveals that since the Applicant’s appointment as trustee, numerous discussions have occurred and correspondence exchanged between Ms Walker and the applicant about the realisation of the property for the benefit of her estate in bankruptcy or, alternatives to realisation such as a commercial payment for annulment of the bankruptcy.

8. In particular, as early as 4 June, 2012 discussions took place which included an invitation to Ms Walker to offer a commercial amount to annul the bankruptcy.  She offered to pay $100 per week, but that was not acceptable to the trustee because of the amount of time it would take to make payment in full.

9. The Applicant deferred realisation of the property for a period of time whilst Ms Walker’s co-owner, Howarth, made payments toward the annulment. But those payments ceased in around March, 2013 and Ms Walker and the Applicant have had further discussions but without a solution being found.

10. There is evidence that as at 20 July, 2015 the amount required to annual the bankruptcy is $88,715.43.  That amount will increase by reason of the costs incurred by the estate including but not limited to the costs associated with the sale of the property and these proceedings.

11. Ms Walker also has debts to secured creditors that hold security over the property.  Mortgage payments are overdue.  Unpaid rates have accumulated in respect of the property.  Some $18,371.03 is owed in that regard.  The applicant is liable for the unpaid rates.

12. Ms Walker argues that she can refinance the property so as to enable her to retain it.  But I am not satisfied that she has the capacity to do that.  The evidence is that the best offer put forward by her was an offer of $300.00 per week to repay a debt of $88,715.43 (current as at 20 July, 2015).  She has not provided any evidence of her capacity to meet those weekly amounts.  Further, as the applicant points out, at the offered rate, it will take nearly 3 years to settle the amount presently owed.

13. Another matter of significance is that the co-owner supports the sale of the property that the Applicant intends to undertake.  The co-owner is at liberty to apply in his known name for the appointment of a statutory trustee for the sale of the property, irrespective of the attitude of Ms Walker or her trustee.  There is no evidence that Ms Walker has an offer to refinance the debt presently existing over the property and to meet the amount required to annul her bankruptcy.

14. Sections 30 and 77(1)(g) of the Act together give the Court the power to make the orders sought by the trustee. The Applicant seeks to sell the property occupied by Ms Walker in furtherance of his duties under s.19 of the Act.

15. Ms Walker has refused to give possession of the property up to the trustee.

16. Whilst the power I am asked to exercise is a discretionary power, the applicant in discharge of his duty is bound to take possession of the property and is duty bound to take appropriate steps to recover property for the benefit of the estate.

17. No good reason is apparent from the evidence before me to decline the relief sought by the Applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 October, 2015.

Associate:

Date: 28 October 2015