Harrison v Tsamasis
[2010] FMCA 341
•17 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARRISON v TSAMASIS | [2010] FMCA 341 |
| 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 ELIZABETH TSAMASIS |
| Respondent: | ELIZABETH TSAMASIS |
| File Number: | SYG 762 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 8, 1-3 Shadfoth Street, Wiley Park in the State of New South Wales and associated garage and storage space being Folio Identifiers 8/SP7953, 19 SP7953 and 23/SP7952 (“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 762 of 2010
| BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE FOR THE BANKRUPT ESTATE OF ELIZABETH TSAMASIS |
Applicant
And
| ELIZABETH TSAMASIS |
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 Elizabeth Tsamasis, sought orders from the Court pursuant to s.77(1)(g) and s.30 of the Bankruptcy Act 1966 (Cth) (“the Act”) requiring the bankrupt Respondent Elizabeth Tsamasis vacate her property, Unit 8, 1-3 Shadfoth Street, Wiley Park 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 16 April 2010, Joseph Khoury, a licenced process server deposes that he personally served:
a)Application;
b)Affidavit of Brett Richard Geoffrey Harrison sworn 30 March 2010; and
c)Affidavit of Maria Pierou Sinanis sworn on 7 April 2010 together with Exhibit footnote MPS 1
to Elizabeth Tsamasis on 12 April 2010 at 2:16pm.
In the affidavit of service, paragraph 3, Joseph Khoury states
At the time of service I said to the person served:
“Are you ELIZABETH TSAMASIS, the person referred to in this document?”
The female person replied:
“Yes”
I said:
“I have these documents for you”
The female person said:
“Can you throw them up to me?”
I then threw the said documents up to the female who was standing on the unit balcony in the secured building with intercom access only.
Elizabeth Tsamasis was made bankrupt by a Sequestration Order made on 10 December 2007. Brett Richard Geoffrey Harrison was appointed her Trustee in bankruptcy. Elizabeth Tsamasis was the registered proprietor of Unit 8, 1-3 Shadfoth Street, Wiley Park and associated garage and storage space (Folio Idntifiers 8/SP7953, 19 SP7953 and 23/SP7952). On 29 October 2009, the discharge of mortgage from the Commonwealth Bank and the bankrupt’s application was registered with the Department of Lands, noting Brett Richard Geoffrey Harrison as the registered proprietor of the property. Brett Richard Geoffrey Harrison in his affidavit of 30 March 2010 indicates that Elizabeth Tsamasis’ bank account currently has only $1,830.60 in suplus funds, but she continues to incurr strata levies and council rates in the order of $2,280.00 per annum. Further, the unpaid costs of the administration of her estate is to increase.
Mr Harrison has put Ms Tsamasis on notice of this proposed application since as early as 22 April 2009 (affidavit of Maria Pierou Sinanis sworn 7 April 2010 – Exhibit NPS 1, tab 6) but Ms Tsamasis has failed to respond to any correspondence or requests for assistance from Mr Harrison. Ms Tsamasis has still not filed a statement of affairs (affidavit of Brett Richard Geoffrey Harrison) this is despite previous proceedings in the Federal Court and numerous attempts to obtain Ms Tsamasis’ cooperation.
Mr Harrison has made extensive enquiries to ensure that appropriate accommodation is available for Ms Tsamasis. Those efforts have been hampered by Ms Tsamasis’ failure to cooperate (affidavit of Maria Pierou Sinanis). Mr Harrison has indicated in his affidavit that he will continue to liaise with the appropriate bodies to seek to secure accommodation for Ms Tsamasis following the occupation and sale of the property.
Consideration
The first matter with which I have to deal is whether or not this order should be made. In the details of claim, six orders are requested and from
1. The Frist Respondent deliver up vacant possession fo the premisis known as Unit 8, 1-3 Shadfoth Street, Wiley Park in the State of New South Wales and associated garage and storage space being Folio Identifiers 8/SP7953, 19 SP7953 and 23/SP7952 (“Property”) within 28 days.
2. In the event that the First 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.
3. The First Respondent remove from the Property all vehicles, rubbish and chattles which have not vested in the Applicant (“the personal property”) within 28 days.
4. 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.
5. The Applicant’s costs of this application be paid from the bankrupt estate of the Respondent.
Mr Harrison seeks orders pursuant to s.30 and s.77(1)(g) of the Act in order to recover the Shadforth Street properties. In Cook v Tagamilitsky [2001] FMCA 117 His Honour Federal Magistrate Raphael was of the view that s.77(1)(g) and s.30 of the Act allowed him to make orders sought by the Applicant, the Trustee in bankruptcy of the bankrupt Respondent in that case. Those orders included that the bankrupt Respondent vacate the property and that a writ of possession issued forthwith in the event that the Respondent failed to do so. His Honour states at [9]
It is interesting that although recovery of the assets of a debtor frequently involves the sale of the debtor’s property and therefore the necessity to require a debtor to vacate possession of that property, there is no specific section in the Bankruptcy Act dealing with this matter in a codified form. Reference has to be made to a number of sections of the Act. However, it is obvious from cases such as Dixon v Ly Ty Tran Cao and Ors, a decision of Beazley J as she then was, unreported 23 June 1995 in the Federal Court and White (as trustee of the bankrupt estate of Lyn) v Lyn [1999] FCA 841 a decision of Finkelstein J, that the Court has power to make such orders and indeed to stay those orders on terms.
This has been subsequently followed in a number of cases: Pascoe v Paula Wallin [2002] FMCA 112; Cook v Schwarcz [2005] FMCA 1598; Official Receiver v Tregaskis & Anor [2006] FMCA 1915, Sheahan v O'Brien and Another (2002) 188 ALR 676.
In this matter Ms Tsamasis is not present, nor has there been any communication with the Court or the Trustee or their representatives seeking a stay of any orders, an adjournment or any other form of participation in these proceedings. It is my view that a combination of s.77 and s.30 of the Act is sufficient to ground the jurisdiction for the orders sought.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
17 May 2010
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