Harrison v McKay

[2016] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v MCKAY [2016] FCCA 446

Catchwords:
BANKRUPTCY – Application for warrant of possession – warrant not granted.

Legislation:

Bankruptcy Act 1966 (Cth), ss.27, 30, 77G, 78, 132

Federal Circuit Court Rules 2001 (Cth), r.1.05(3), 25B.62
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), rr.1.03
Federal Court Rules 201 (Cth), r.41.10

Coshott v Prentice [2014] FCCA 88

Applicant: BRETT RICHARD GEOFFREY HARRISON

Respondent: MARGARET ANN MCKAY

File Number: SYG 271 of 2016

Judgment of: Judge Street

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr G Pignone

No appearance by or on behalf of the Respondent

ORDERS

1. The Respondent deliver up possession of the premises known as 4/174 Keppel Street, Bathurst in the State of New South Wales being the property contained in Folio Identifier 4/SP45835 ("the Property") within 28 days.

2. The Respondent remove from the Property, all vehicles, rubbish and chattels which have not vested in the Applicant (the "Personal Property") within 28 days.

3. In the event that the Respondent fails to comply with order 2, the Applicant may remove and dispose of the Personal Property as he sees fit after 28 days have passed from the date of making this order.

4. Stand the matter over for a date to be fixed with leave to the Applicant to amend the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 271 of 2016

BRETT RICHARD GEOFFREY  HARRISON

Applicant

And

MARGARET ANN  MCKAY

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth). The trustee is seeking orders for the bankrupt to deliver up possession of a particular real property and to remove personal property from that location. I am satisfied that the Court has power under ss.30, 77G and 78 of the Bankruptcy Act 1966 to make the orders refer to above.

2. The Court raised with the applicant that possession has not yet been taken at law under s.132(3) of the Bankruptcy Act 1966 and that on the scheme of the Act this appears to be a prerequisite for any application to issue a warrant for possession. The express power for an eligible judge to issue a warrant for seizure of property in s.130 of the Bankruptcy Act does not exclude the power to grant a warrant for possession in respect of the bankrupt, see Coshott v Prentice [2014] FCCA 88 at [96]; r.41.10 Federal Court Rules2011 picked up by r.1.05(3) of the Federal Circuit Court Rules 2001, picked up by r.1.03 of the Federal Circuit Court (Bankruptcy) Rules 2006; see also r.25B.62 Federal Circuit Court Rules applicable in Family Law matters. 

3. I grant leave to the applicant to amend the application if the applicant seeks to pursue any further order under r.25B.62 of the Federal Circuit Court (Bankruptcy) Rules 2006.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 March 2016