Harrison v Pollock - [2014] FCCA 1784

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v POLLOCK

[2014] FCCA 1784

Catchwords:
BANKRUPTCY – Application by Trustee in Bankruptcy for vacant possession of property registered in name of Bankrupt Respondent.

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”)…

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 Pollock

Details

AGLC: Harrison v Pollock [2014] FCCA 1784
Case: [2014] FCCA 1784
Decision Date: 4 August 2014

CaseChat Overview and Summary

The applicant, the Trustee in Bankruptcy, sought vacant possession of a property registered in the name of the Bankrupt Respondent. The Bankrupt Respondent did not appear at the hearing of the application.

The primary legal issue before the Court was whether the Bankrupt Respondent had been given sufficient notice of the Trustee's application for vacant possession of the property.

Judge Emmett considered the evidence regarding the service of the application documents. The Court found that the Trustee had taken all reasonable steps to notify the Bankrupt Respondent of the proceedings, including serving documents at the Bankrupt Respondent's last known address and by email. The Court was satisfied that the Bankrupt Respondent had been afforded sufficient notice.

The Court made orders for vacant possession of the property to be delivered to the Trustee in Bankruptcy.

Orders