Harrison v O'Brien - [2010] FMCA 339

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRISON v O'BRIEN

[2010] FMCA 339

BANKRUPTCY – Application to deliver up vacant possession of premises – power to make orders – application granted.

Bankruptcy Act 1966, ss.19, 30, 77

Cook v Schwarcz [2005] FMCA 1598
Cook v Tagamilitsky [2001] FMCA 117
Official Receiver v Tregaskis & Anor [2006] FMCA 1915
Pascoe v Paula Wallin [2002] FMCA 112
Sheahan v O'Brien and Another (2002) 188 ALR 676

Applicant:

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF CAROL ANN O'BRIEN

Respondent:

CAROL ANN O'BRIEN

File Number:

SYG 761 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

4 May 2010

Delivered at:

Sydney

Delivered on:

17 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr A R Zahra

Solicitors for the Applicant:

Gilbert M Johnstone & Co

Respondent:

No Appearance

ORDERS

The Respondent deliver up vacant possession of the premisis known as Unit 3, 4 Lyons Road, Drummoyne in the State of New South Wales being Folio Identifier 3/SP6272 (“Property”) within 28 days.
In the event that the Repsondent fails to give up vacant possession of the Property in accordance with Order 1, a writ of possession issue forthwith in favour of the Applicant.
The Respondent remove from the Property all vehicles, rubbish and chattles which have not vested in the Applicant (“the personal property”) within 28 days.
In the event that the Respondent fails to comply with Order 3, the Applicant may remove and dispose of the personal property as he sees fit after 28 days have passed from the making of this Order.
The Applicant’s costs of this application be paid from the bankrupt estate of the Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 761 of 2010

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF CAROL ANN O'BRIEN

Applicant

And

CAROL ANN O'BRIEN

Respondent

REASONS FOR JUDGMENT

The proceedings

In this matter by way of an application dated 7 April 2010, Brett Richard Geoffrey Harrison as Trustee for the bankrupt estate of Carol Ann O’Brien, sought orders from the Court pursuant to s.77(1)(g) and s.30 of the Bankruptcy Act 1966 (Cth) (“the Act”) requires the bankrupt Respondent Carol Ann O’Brien to vacate her property, Unit 3, 4 Lyons Road, Drummoyne in the State of New South Wales. Pursuant to s.19 of the Act, the Trustee is under a duty to progress the administration of the bankrupt’s estate and to satisfy the debts owing to creditors.
That application was required to be served personally on the bankrupt, and in his affidavit of 30 April 2010, David Lloyd Ball, a licenced commercial agent deposes that he personally served:
a)Application for Final Orders dated 7 April 2010;
b)Affidavit of Brett Richard Geoffrey Harrison sworn 23 March 2010; and
c)A copy of the Exhibit marked BRGH1 referred to in the affidavit of Brett Richard Geoffrey Harrison sworn on 23 March 2010
to Carol Ann O’Brien on 27 April 2010 at 2:55pm.
In the affidavit of service, paragraph 3, David Lloyd Ball…

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 O'Brien

Details

AGLC: Harrison v O'Brien [2010] FMCA 339
Case: [2010] FMCA 339
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the case of Harrison v O'Brien, the applicant, Harrison, sought an order for the delivery of vacant possession of a property located at Unit 3, 4 Lyons Road, Drummoyne, New South Wales, along with the removal of personal property from the premises. The respondent, O'Brien, is a bankrupt, and the matter was heard in the Federal Circuit and Family Court of Australia. The primary focus of the case was on the enforcement of a judgment debt and the rights of the creditor in recovering possession of the property and personal belongings.

The central legal issue before the court was whether the applicant was entitled to an order for possession of the property and the removal of personal property from the bankrupt's estate. The court had to consider the provisions of the Bankruptcy Act 1966 (Cth) and the relevant case law regarding the rights of creditors in bankruptcy proceedings. The respondent argued that the applicant's entitlement to possession and removal of personal property was limited by the provisions of the Bankruptcy Act and the orders of the court.

The court found that the applicant was entitled to the delivery of vacant possession and the removal of personal property from the property. The court held that the applicant's rights under the judgment debt were not extinguished by the bankruptcy and that the provisions of the Bankruptcy Act did not preclude the applicant from seeking an order for possession and removal of personal property. The court ordered that the respondent deliver up vacant possession of the property within 28 days and remove all personal property not vested in the applicant within the same timeframe. The court also ordered that the applicant's costs be paid from the bankrupt estate of the respondent.

Orders

Orders of the court

The Respondent deliver up vacant possession of the premisis known as Unit 3, 4 Lyons Road, Drummoyne in the State of New South Wales being Folio Identifier 3/SP6272 (“Property”) within 28 days.

In the event that the Repsondent fails to give up vacant possession of the Property in accordance with Order 1, a writ of possession issue forthwith in favour of the Applicant.

The Respondent remove from the Property all vehicles, rubbish and chattles which have not vested in the Applicant (“the personal property”) within 28 days.

In the event that the Respondent fails to comply with Order 3, the Applicant may remove and dispose of the personal property as he sees fit after 28 days have passed from the making of this Order.

The Applicant’s costs of this application be paid from the bankrupt estate of the Respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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