Harrison v McKay (No.2)

[2016] FCCA 2032

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v MCKAY (No.2) [2016] FCCA 2032

Catchwords:
BANKRUPTCY – whether a writ of possession should be issued – noncompliance with Court order – potential contempt of Court – writ of possession issued – form of writ of possession attached.

Legislation:

Bankruptcy Act 1966 (Cth), ss.27, 30.

Civil Procedure Act 2005 (NSW), s.104.
Federal Circuit Court of Australia Act 1999 (Cth), s.18.
Federal Circuit Court Rules 2001 (Cth), r.29.11.
Judiciary Act 1903 (Cth), s.79.
Uniform Civil Procedure Rules (NSW), r.39.1

Cases cited:

Teese v Woodgate (2004) 62 NSWLR 127

Applicant: BRETT RICHARD GEOFFREY HARRISON

Respondent: MARGARET ANN MCKAY

File Number: SYG 271 of 2016

Judgment of: Judge Street

Hearing date: 9 August 2016

Date of Last Submission: 9 August 2016

Delivered at: Sydney

Delivered on: 9 August 2016

REPRESENTATION

Counsel for the Applicant: Mr B Skinner

Solicitors for the Applicant: Church & Grace

No appearance by or on behalf of the Respondent

ORDERS

1. Pursuant to r.29.11 of the Federal Circuit Court Rules 2001, a writ of possession of real property is issued authorising the Sheriff to enter the property known as 4/174 Keppel Street, Bathurst in the State of New South Wales being the property contained in Folio Identifier 4/SP45835 and directs the Sheriff to give possession of the said property to the person entitled to possession.

2. Pursuant to r.25B.73(1) of the Federal Circuit Court Rules 2001, the respondent is required to attend Court at 2:15 pm on 17 August 2016 for the Court to consider and determine whether to have the respondent charged with contempt for failing to comply with order 1 made on 3 March 2016.

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) in which a trustee is seeking an order for a writ of possession of real property of the respondent. On 3 March 2016, this Court made an order for the respondent to deliver up the premises of 4/174 Keppel Street, Bathurst in the state of New South Wales, being property contained in the folio identifier SP45835, within 28 days.

2. On the evidence before the Court the respondent was served with that order and has failed to comply with that order.  The applicant has also served evidence consistent with the Uniform Civil Procedure Rules (NSW) of serving a notice to the occupier for the purpose of obtaining a writ of possession. This Court, pursuant to r.29.11 of the Federal Circuit Court Rules 2001 rules, has power to issue a writ in the same nature as may have been issued in the Supreme Court of the relevant State in which the judgment or order has been made. This Court has ample power under s.30 of the Bankruptcy Act 1966 to make orders that facilitate the trustee obtaining property divisible amongst the bankrupt’s creditors. This includes ample power to sell jointly owned and divisible property.

3. Mr Skinner of counsel directed the Court to the history behind the process under which this Court may make orders in respect of which a sheriff of a State Court will enforce the same, as discussed by the learned Levine J in Teese v Woodgate (2004) 62 NSWLR 127. Section 104 of the Civil Procedure Act 2005 (NSW) provides for the issue of a writ of possession and falls within r.29.11 of the Federal Circuit Court Rules.

4. The issue of the writ under r.39.1 of the Uniform Civil Procedure Rules (NSW) is a matter of procedure picked up by s.79 of the Judiciary Act 1903 (Cth) and is within the scope of associated jurisdiction of this Court under s.18 of the Federal Circuit Court of Australia Act 1999 (Cth).

5. The real property is vested in the trustee and the trustee is entitled to possession. I am satisfied on the material before the Court that this is an appropriate matter in which to issue a writ of possession. The Court settled the form of the writ of possession that was signed and sealed.

6. A copy of the form of writ of possession is attached to these reasons. On the material before the Court, the respondent has engaged in a potential contempt by the failure to comply with the order of 3 March 2016 and, accordingly, the Court also proposes to order that the respondent attend in person before the Court on a date fixed in the order, to consider and determine whether to have the respondent charged with contempt for failing to comply with order 1 made on 3 March 2016. 

7. The Court notes that if the respondent fails to appear on that date in person, the Court will consider whether to issue a warrant for the arrest of the respondent. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 September 2016

Attachment to Reasons for Judgment in Harrison v McKay (No.2) [2016] FCCA 2032

Form 60 (version 4)
Civil Procedure Act 2005 s 104, UCPR 39.1

WRIT OF POSSESSION

COURT DETAILS
Court	Federal Circuit Court of Australia
Division	Bankruptcy
Registry	Sydney
Case number	SYG271/2016
TITLE OF PROCEEDINGS
Applicant	Brett Richard Geoffrey Harrison
Respondent	Margaret Ann McKay
JUDGMENT DETAILS
Person entitled to execution of judgment		Brett Richard Geoffrey Harrison, Applicant
Person liable to execution of judgment		Margaret Ann McKay, Respondent
TO THE SHERIFF OF NEW SOUTH WALES AND ALL SHERIFF'S OFFICERS
Description of land	4/174 Keppel Street, Bathurst in the State of New South Wales being the property contained in Folio Identifier 4/SP45835

Enter the land described above and cause the person entitled to execution of judgment to have possession of it.

ISSUING DETAILS

This writ continues to be in force for 12 months from the date of issue or such further time as is permitted under UCPR 39.20.

Writ issued on	9 August 2016
Issued at	Federal Circuit Court of Australia, Sydney, NSW
Signature
Capacity	Judge of the Federal Circuit Court of Australia
Date writ received by Sheriff

[on separate page]

DETAILS OF PERSON ENTITLED TO EXECUTION OF JUDGMENT
Name	Brett Richard Geoffrey Harrison
Address for service	Level 1
	20	Castlereagh		Street
	Sydney	NSW		2000
Telephone	[phone]
Fax	[phone]
Email	[email protected]
ADDITIONAL INFORMATION TO ASSIST SHERIFF’S OFFICE
Is any person in occupation of the land pursuant to a right of occupation under a residential tenancy agreement, within the meaning of the Residential Tenancies Act 2010?	c Yes r No