Harrison v Tsamasis - [2010] FMCA 341

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…

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 Tsamasis

Details

AGLC: Harrison v Tsamasis [2010] FMCA 341
Case: [2010] FMCA 341
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Harrison v Tsamasis involved a dispute over the possession and removal of personal property from a unit. The applicant, Harrison, sought an order for the respondent, Tsamasis, to vacate the property and remove all personal belongings that did not belong to the applicant. The matter came before the court to determine the legal rights and obligations of both parties.

The primary legal issues addressed by the court were whether the applicant was entitled to possession of the property and whether the respondent was required to remove specific personal property from the premises. The court had to consider the terms of the agreement between the parties, the applicable legislation concerning personal property and the rights of a bankrupt, and any relevant case law. Additionally, the court needed to decide whether the costs of the application should be borne by the respondent or the applicant.

The court found in favour of the applicant, concluding that the respondent was obligated to vacate the property and remove all personal property that did not belong to the applicant. The court based its decision on the terms of the agreement, the statutory provisions governing personal property, and the legal principles relevant to the rights of a bankrupt. The court also determined that the respondent's costs of the application should be paid from the bankrupt estate. As a result, the court issued specific orders requiring the respondent to vacate the property and remove the personal property within a specified timeframe and to pay the applicant's costs.

In summary, the Federal Court of Australia ruled that the respondent must vacate the property and remove all personal property not belonging to the applicant within 28 days. If the respondent failed to comply, the court authorised the applicant to remove and dispose of the personal property. The court also ordered that the respondent's costs of the application be paid from the bankrupt estate.

Orders

Orders of the court

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.

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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