Harrison v Lin
[2016] FCCA 2858
•7 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRISON v LIN | [2016] FCCA 2858 |
| Catchwords: PRACTICE & PROCEDURE – No appearance by or on behalf of the respondent Bankrupt. |
| Legislation: Bankruptcy Act 1966 (Cth), s.30 Uniform Civil Procedure Rules 2005 (NSW), regs.6.8, 36.8, 39.1 Federal Circuit Court of Australia Act 1999 (Cth), ss.15, 78 Federal Circuit Court Rules 2001 (Cth), r.29.11 |
| Cases Cited: Coshott v Prentice [2014] FCAFC 88 Patterson v McKinnon [2008] FCA 1624 |
| Applicant: | BRETT RICHARD GEOFFREY HARRISON |
| Respondent: | JUDY LIN |
| File Number: | SYG 391 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 7 November 2016 |
| Date of Last Submission: | 7 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Gino Pignone (Church & Grace Lawyers) |
| No appearance by or on behalf of the Respondent. |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 391 of 2016
| BRETT RICHARD GEOFFREY HARRISON |
Applicant
And
| JUDY LIN |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By way of application filed on 23 February 2016, the applicant Trustee in Bankruptcy (“the Trustee”) sought an Order pursuant to s.30 of the Bankruptcy Act 1966 (Cth) (“the Act”) that Judy Lin, the respondent bankrupt (“the Bankrupt”), deliver up vacant possession of the property known as 2/84 Northumberland Road, Auburn, in the state of New South Wales (folio identifier 2/SP33572) (“the Property”), together with a writ of possession to issue forthwith in favour of the Trustee.
The applicant was appointed as Trustee of the estate of the Bankrupt pursuant to a Sequestration Order made on 28 July 2015. Upon the making of the Sequestration Order, the Property vested in the Trustee. Prior to this, the Bankrupt was the sole registered proprietor of the Property.
In support of the application, the solicitor for the Trustee, Mr Gino Pignone, read an affidavit of service of Mary Radoski sworn on 2 November 2016. Ms Radoski’s affidavit was in relation to the service by her of relevant documents, including the originating application seeking the Orders referred to above and a ‘Notice to Occupier’ dated 24 February 2016. Mr Pignone also read an affidavit of the Trustee sworn on 16 February 2016 and an affidavit of himself sworn on 4 July 2016.
Mr Pignone’s affidavit referred to a conversation that he had with the Bankrupt when he attended the Property with Ms Radoski on 15 June 2016. Mr Pignone deposed that he raised with the Bankrupt the unpaid strata levies that had given rise to the Sequestration Order. Mr Pignone deposed that the Bankrupt said that she would never pay strata levies again as the strata manager had failed to fix a problem in her unit.
Regulation 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) prescribes the following in relation to a proceeding for possession of land:
“6.8 Originating process for recovery of land to be served on occupier
(1) If, when proceedings for possession of land are commenced, a person (the “occupier”) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff:
(a) must state in the originating process that the plaintiff does not seek to disturb the occupier’s occupation of the land, or
(b) must serve the originating process on the occupier together with a notice to the effect that:
(i) the occupier may apply to the court for an order that the occupier be added as a defendant, and
(ii) if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.
(2) For the purposes of subrule (1), documents may be served on the occupier personally or by leaving the documents on the land concerned addressed to the occupier by name or addressed simply “to the occupier”.
(3) If originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced is taken, for the purposes of subrule (1), to be the time at which the amendment is made.”
Further, a Judgment for possession of land can only be given in accordance with reg.36.8 of the UCPR, as follows:
“36.8 Possession of land
Unless the court orders otherwise, judgment for possession of land may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit:
(a) stating that, when the originating process was filed or (if the claim for possession arises from an amendment to the originating process) when the amendment was made:
(i) specified persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, or
(ii) no persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, and
(b) stating that, as to each person specified in accordance with paragraph (a) (i) (other than a person whose occupation the plaintiff does not seek to disturb):
(i) the originating process has been duly served on the person, or
(ii) the person has, since the time referred to in paragraph (a), ceased to be in occupation of any part of the land, and
(c) in relation to a claim for possession by reason of default in the payment of money, stating particulars of the default.”
There has been no participation by the Bankrupt in this proceeding at any stage, despite Orders having been made by me providing an opportunity for the Bankrupt to file evidence in relation to the Trustee’s application seeking vacant possession of the Property.
On 12 May 2016, the Bankrupt was directed to file a Statement of Affairs in accordance with her obligations under the Act. However, there has been no document filed by or on her behalf, either in accordance with any of the directions made by the Court or otherwise.
I accept the affidavit of Ms Radoski as evidence of effective service upon the Bankrupt of the documents annexed therein. I am satisfied that reg.6.8 of the UCPR has been complied with in respect of service of the originating application on the Bankrupt as the occupier of the Property.
Accordingly, based on the evidence before me, I am satisfied that the Bankrupt is aware of today’s proceeding and, for whatever reason, has chosen not to attend.
On the evidence before me, I am satisfied that the Bankrupt’s adult daughter lives with the Bankrupt at the Property. However , there is no evidence before the Court of any right of the daughter to occupy the Property, or whether or not the daughter is a dependent of the Bankrupt.
In support of compliance with regs.36.8(a)(i) and (b)(i) of the UCPR, Mr Pignone again relied on the affidavit of Ms Radoski. In her affidavit, Ms Radoski deposed that she asked the Bankrupt on 1 March 2016 who else lived with her at the time when the originating application was filed in this Court on 23 February 2016. Mr Radoski deposed that the Bankrupt answered “only me and my daughter”. I am satisfied that regs.36.8(a)(i) and (b)(i) of the UCPR have been complied with insofar as there has been due service of the originating application upon the Bankrupt as an occupier of the Property. I am satisfied that compliance with regs.36.8(a)(i) and (b)(i) of the UCPR should be waived in respect of the Bankrupt’s daughter.
Regulation 36.8(c) of the UCPR requires that the Trustee file an affidavit in relation to a claim for possession by reason of default in the payment of money, stating particulars of the default. Mr Pignone submitted to the Court that the claim for possession is by the Trustee as registered proprietor, rather than because of any default in the payment of money. Mr Pignone submitted that, in the circumstances, compliance with reg.36.8(c) of the UCPR was irrelevant.
Certainly the Sequestration Order made against the Bankrupt arose from a default of payment of money, and in the event compliance with reg.36.8(c) of the UCPR requires this evidence, Mr Pignone directed the Court’s attention to his affidavit sworn on 4 July 2016. In that affidavit, Mr Pignone deposed that he had a conversation with the Bankrupt about the unpaid strata fees referred to above, and that she had indicated an intention not to pay them. Whilst I am not certain that that is necessarily strict compliance with reg.36.8(c) of the UCPR should it apply, I am of the view that strict compliance with reg.36.8(c) of the UCPR does not provide any further procedural fairness to the Bankrupt. Therefore, if compliance with reg.36.8(c) of the UCPR does require that evidence, strict compliance is waived.
I am satisfied that s.30 of the Act provides sufficient power to the Court to make Orders against the Bankrupt for the vacation of the Property, the issuing of a writ for possession, and for the sale of the Property, in circumstances where the Bankrupt is not complying with her obligations under the Act (see Coshott v Prentice [2014] FCAFC 88 at [94] per Siopis, Katzmann & Perry JJ and Patterson v McKinnon [2008] FCA 1624 at [2] per Jessup J).
I also note that, pursuant to s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”), this Court has power to issue or direct the issue of writs of such kind as the Court may think appropriate.
In addition, s.78(2) of the FCCA Act states the following:
“(2) A person in whose favour a judgment of the Federal Circuit Court of Australia is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.”
In particular, r.29.11(1) of the Federal Circuit Court Rules 2001 (Cth) provides that:
“(1) A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order has been made, as if it were a judgment or order of that Supreme Court.”
Based on the evidence before me, I am satisfied that the relevant legislative scheme has been complied with by the Trustee. In particular, I am satisfied that the requirements under regs.6.8 and 36.8 of the UCPR have been complied with. Additionally, as stated above, there has been no step taken by the Bankrupt to participate in this proceeding.
In the circumstances, the Orders sought in the originating application filed on 23 February 2016 should be made. I also note that a writ of execution may not be issued as a writ for the possession of land except by leave of the Court pursuant to reg.39.1 of the UCPR. The Orders made by the Court today provide for that leave.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 23 November 2016
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