Gleeson as trustee of the Property of Saker (A Bankrupt) v Saker (A Bankrupt) (No.2)

[2017] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLEESON AS TRUSTEE OF THE PROPERTY OF SAKER (A BANKRUPT) v SAKER (A BANKRUPT) (No.2) [2017] FCCA 748

Catchwords:
BANKRUPTCY – Notice served under s.133 disclaiming the property – property no longer forms part of the property vested in the trustee for benefit of the creditors – injunction dissolved – proceedings otherwise dismissed.

Legislation:

Bankruptcy Act 1966, ss.27, 109, 133.

Applicant: BRUCE GLEESON AS TRUSTEE OF THE PROPERTY OF JASON GABRIEL SAKER (A BANKRUPT)

Respondent: JASON GABRIEL SAKER (A BANKRUPT)

File Number: SYG 865 of 2017

Judgment of: Judge Street

Hearing date: 18 April 2017

Date of Last Submission: 18 April 2017

Delivered at: Sydney

Delivered on: 18 April 2017

REPRESENTATION

Counsel for the Applicant: Mr R A Parsons

Solicitors for the Applicant: CLH Lawyers

The Respondent appeared in person.

ORDERS

1. The ex parte injunction granted on 23 March 2017 is dissolved.

2. The Respondent to pay the Applicant’s costs of these proceedings on a trustee basis with priority in accordance with s.109 of the Bankruptcy Act 1966 (Cth).

3. The proceedings are otherwise dismissed.

THE COURT NOTES THAT:

1. The Applicant, trustee has under s.133 of the Bankruptcy Act 1966 disclaimed the property comprised in Lot 134 in Deposited Plan 32148 situated and known as 50 Shane Park Road, Shanes Park NSW (“the Property”).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 865 of 2017

BRUCE GLEESON AS TRUSTEE OF THE PROPERTY OF JASON GABRIEL SAKER (A BANKRUPT)

Applicant

And

JASON GABRIEL SAKER (A BANKRUPT)

Respondent

REASONS FOR JUDGMENT

1. These were proceedings commenced within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth) (“the Act”) by the trustee seeking urgent injunctive relief. On 23 March 2017, on the basis of the prima facie case evidence adduced by the trustee, the Court granted interlocutory injunctive relief part of which included the requirement for the respondent Mr Saker to attend Court in relation to the completion of a report as to affairs, as well as injunctive relief restraining Mr Saker from further steps in relation to what was alleged to be dumping on a particular property.

2. On the return date of that matter, being 27 March 2017, Mr Saker appeared before the Court and completed a report as to affairs and has since that time fully cooperated with the trustee in relation to these proceedings. The Court noted on 27 March 2017 the compliance by Mr Saker with the orders made by the Court. At that stage, it was hoped that the property might be able to be realised in circumstances that would permit the Court to consider making orders to bring the bankruptcy to an end. 

3. Since that time however, it is apparent that the Environmental Protection Authority has issued a notice of clean-up action to the two current registered owners of the property and it is in those circumstances that the trustee has now taken steps to serve a notice under s.133 of the Act disclaiming the property so that it no longer forms part of the property vested in the trustee for the benefit of the creditors. That step also releases the trustee from any potential liability in respect of the property.

4. The Court made the matter returnable today. Mr Saker has again attended and cooperated in relation to the current proceedings. The inter-party orders were made on 27 March 2017 without opposition. Whilst the Court could have just made the orders without recording the positive steps taken by Mr Saker, in the circumstances where it appears other proceedings may be taken, it is appropriate to record his cooperation with the trustee and his cooperation in relation to these proceedings.   

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 April 2017