Harrison v Lin - [2016] FCCA 2858

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v LIN

[2016] FCCA 2858

Catchwords:
BANKRUPTCY – Application by the Trustee in Bankruptcy for an Order pursuant to section 30 of the Bankruptcy Act 1966 (Cth) for vacant possession – whether the Trustee has complied with the requirements in regulations 6.8 and 36.8 of the Uniform Civil Procedure Rules 2005 (Cth) in respect of the Bankrupt as an occupier of the property – whether compliance with regulations 6.8 and 36.8 of the Uniform Civil Procedure Rules 2005 (Cth) should be waived in respect of the Bankrupt’s adult daughter as an occupier of the property – writ of possession to issue.

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…

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.

Continue reading Harrison v Lin

Details

AGLC: Harrison v Lin [2016] FCCA 2858
Case: [2016] FCCA 2858
Decision Date: 7 November 2016

CaseChat Overview and Summary

The Trustee in Bankruptcy applied to the Federal Court of Australia for an order for vacant possession of a property pursuant to section 30 of the *Bankruptcy Act 1966* (Cth). The respondent, the Bankrupt, did not appear before the Court.

The primary legal issues before the Court were whether the Trustee had complied with the requirements of regulations 6.8 and 36.8 of the *Uniform Civil Procedure Rules 2005* (Cth) concerning the Bankrupt as an occupier of the property, and whether compliance with these regulations should be waived in respect of the Bankrupt's adult daughter, who was also an occupier.

Emmett J found that the Trustee had not strictly complied with the notice requirements of regulations 6.8 and 36.8 of the *Uniform Civil Procedure Rules 2005* (Cth) in relation to the Bankrupt. However, his Honour determined that it was appropriate to waive compliance with these regulations in respect of the Bankrupt's adult daughter, given the circumstances. The Court concluded that a writ of possession should issue.

Orders