Harrison v Pollock
[2014] FCCA 1784
•4 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRISON v POLLOCK | [2014] FCCA 1784 |
| Catchwords: PRACTICE & PROCEDURE – No appearance by Bankrupt Respondent – whether Bankrupt Respondent had sufficient notice of Application Trustee in Bankruptcy. |
| Applicant: | BRETT RICHARD GEOFFREY HARRISON |
| Respondent: | GRANT RAYMOND POLLOCK |
| File Number: | SYG 1997 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 4 August 2014 |
| Date of Last Submission: | 4 August 2014 |
| Delivered at: | Judge Emmett |
| Delivered on: | 4 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Pignone (Church & Grace) |
| No appearance by or on behalf of the respondent |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1997 of 2014
| BRETT RICHARD GEOFFREY HARRISON |
Applicant
And
| GRANT RAYMOND POLLOCK |
Respondent
REASONS FOR JUDGMENT
This is an application by the applicant Trustee in Bankruptcy (“the Trustee”) for an order that the respondent bankrupt (“the Bankrupt”) deliver up possession of premises in Bondi in respect of which the respondent is the registered owner.
The applicant was represented by his solicitor, Mr Pignone, before me this morning.
In support, Mr Pignone read the affidavit of service of Anastacey John Gavrily deposing to service upon the respondent on 22 July 2014 of the application, filed on 17 July 2014, seeking orders for the vacant possession of the Bankrupt’s property at Bondi.
There is no appearance by the Bankrupt this morning. However, on the evidence before me, I am satisfied that the respondent was properly served on 22 July 2014. I am further satisfied there has been sufficient time from the date of service for the Bankrupt to have participated in the proceeding, should he have chosen to do so.
Mr Pignone also read the affidavit of the Trustee, sworn/affirmed 14 July 2014. That affidavit annexes a number of documents including a copy of the Sequestration Order made on 1 May 2014; a Certificate of Appointment of the Trustee to the estate of the Bankrupt; copies of various correspondence between the Bankrupt and the Trustee; a copy of a property search in respect of the property in Bondi registered in the name of the Bankrupt; and, a copy of a caveat lodged on the title of the Bankrupt’s property by the Trustee.
On the basis of that evidence, I am satisfied that a Sequestration Order was made on 1 May 2014 in respect of the estate of the Bankrupt. I am also satisfied that the Bankrupt is the registered owner of the property in respect of which vacant possession is sought.
I also have regard to written submissions by Mr Pignone this morning in support of the application and the substance of which I accept. Those submissions helpfully set out the background, the legislative regime and the power of the Court to make the orders sought. They are as follows:
1. Grant Raymond Pollock (“Bankrupt”) had a Sequestration Order made against him on 1 May 2014 and Brett Harrison (“Trustee”) became his bankruptcy trustee. (See the Affidavit of Brett Harrison sworn 14 July 2014 paragraphs 1, 4 and 5 and pages 5 and 6 of BH1).
2. Upon the making of the Sequestration Order pursuant to s.58 of the Bankruptcy Act 1966 (Cth) all property of the Bankrupt vested in the Trustee. This includes a property of which the Bankrupt is the sole registered proprietor on the date of the Sequestration Order. That property is contained in Folio Identifier 98/SP11960 and known as 902/212 Bondi Road, Bondi in the State of New South Wales (“Property”). See the Affidavit of Brett Harrison sworn 14 July 2014, paragraph 7 and page 47 of BH1).
3. The Trustee has caused a Caveat to be lodged on the title of the Property. See paragraph 8 of the Affidavit of Brett Harrison sworn 14 July 2014 and page 48 of BH1).
4. The Bankrupt has failed to assist the trustee to the utmost of his ability, particularly with respect to supplying his Statement of Affairs. (See the affidavit of Brett Harrison sworn 14 July 2014, paragraph 6 and pages 7-46 of BH1).
5. On a number of occasions, the lawyers acting for the Trustee have requested information from lawyers acting for the Bankrupt and there has been no reply to such requests. (See paragraphs 9-18 of the Affidavit of Brett Harrison sworn 14 July 2014).
6. On 1 July 2014 the Trustee via his lawyers sent a letter to the Bankrupt directing that the Bankrupt, inter alia, make arrangements to deliver up vacant possession of the Property and advise of the whereabouts of the original Certificate of Title for the Property. There has been no reply by the Bankrupt to those directions. (See the Affidavit of Brett Harrison sworn 14 July 2014 at paragraphs 13 and 14 and pages 54 and 55 of BH1).
7. Copies of the Application and Affidavit filed in these proceedings were served on the Bankrupt on 22 July 2014 personally. (See the Affidavit of Anastacey John Gavrily sworn 27 July 2014). There is no other person in occupation of the premises.
8. Upon the vesting of the Bankrupt’s property in the Trustee, s129(1) requires the Trustee forthwith to take possession of all the property of the Bankrupt capable of delivery including all deeds. Section 129(2) enables the Trustee to seek the Court’s assistance to enforce possession accordingly. This statutory scheme enables a proper orderly administration of the bankruptcy to occur.
9. Pursuant to s77(1)(g), the Bankrupt is to aid to the utmost of his power in the administration of his bankrupt estate. That requires, in our submission, the Bankrupt to assist in bringing in the assets in the bankrupt estate for the purposes of administration of the estate.
10. There appears to be no ability for the trustee to avoid his duty to bring in the Bankrupt’s assets.
11. Although, the requirements for registration are required for the legal title to pass to the Trustee, this does not prevent a Trustee in whom property has vested from taking action to protect that property. This is particularly the case in circumstances where the Bankrupt is refusing to assist the Trustee in the protection of assets by the Trustee.
12. Ultimately, it is the Trustee who may exercise a discretion with respect to dealing with assets of the bankrupt estate (see s134). That provision does not appear to give the Trustee the ability to delegate his obligations under the Act to the Bankrupt or any other person.
13. In the event of failure by the Bankrupt to assist his Bankruptcy Trustee, the Trustee may seek the assistance of this Court under S.30 of the Bankruptcy Act, 1966 to have made such Orders as necessary for the purposes of carrying out or giving effect to the Bankruptcy Act.
14. There is a line of authority commencing from the matter of Cook v Tagamilitsky [2001] FMCA 117 by which Orders may be made requiring a Bankrupt to vacate property vested in the bankrupt’s trustee and in the event of failing to do so, order a Writ of Possession issue. The Trustee relies on authorities in addition to Cook v Tagamilitsky including Cook & Anor v Schwarcz [2005] FMCA 158 and Pascoe v Hooper [2009] FMCA 520. The Full Court has recently confirmed the effect of this line of authority in Coshott v Prentice [2014] FCAFC 88.
15. Should the Bankrupt seek to deal with the Property, it is the Trustee’s submission that it is he who is required under the Bankruptcy Act to bring in the property of the Bankrupt deal with that property so as to administer the estate. Indeed, to allow the Bankrupt to take such steps in the absence of control by the Trustee would be fraught with issues including:
(a) proper valuation and sale of the property;
(b) the timing within which the sale is to occur; and
(c) dealing with creditor’s claims including interest claims if there is to be an annulment under s153A and including the realisation claim that may be made by the Official Receiver,
as the Trustee would be required to monitor closely the steps taken by a bankrupt in a sale, there would be no saving in costs.
In the circumstances, I am satisfied that the Court has power to make the orders sought and that it is appropriate that such orders be made.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 2 September 2014
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