Holmes v Dillon and Ors (No.2) - [2010] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOLMES v DILLON & ORS (No.2)

[2010] FMCA 399

BANKRUPTCY – Application to extend time for reviews – no merit to proposed applications for review – application dismissed.

Bankruptcy Act 1966, s.30
Property Law Act 1974 (Qld), s.38

Re Bilen, ex-parte Sistrom (1985) FCA 120
Park v Barclay [2010] FMCA 397

Applicant:

LILLE HOLMES (NEE KOSTESKA)

Respondent:

R.S. DILLON & RAYMOND SHANE DILLON

File Number:

BRG 513 of 2006

Applicant:

LILLE HOLMES (NEE KOSTESKA)

Respondent:

R.S. DILLON & RAYMOND SHANE DILLON

File Number:

BRG 932 of 2006

Applicant:

LILLE HOLMES (NEE KOSTESKA)

Respondent:

P.D. SWEENEY PRINCIPAL, SV PARTNERS COURT APPOINTED TRUSTEES

File Number:

BRG 73 of 2010

Judgment of:

Jarrett FM

Hearing date:

13 May 2010

Date of Last Submission:

13 May 2010

Delivered at:

Brisbane

Delivered on:

13 May 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Mr Young

Solicitors for the Respondent:

Bennett & Philip Lawyers

ORDERS

BRG 513 of 2006

The applicant’s oral application for adjournment be dismissed.

BRG 932 of 2006

The applicant’s oral application for adjournment be dismissed.

BRG 73 of 2010

The applicant’s oral application for adjournment be dismissed.

And

The application filed on 29 January 2010 be dismissed.
The Applicant deliver up vacant possession of the property at 29 Plantation Road, Tamborine in the State of Queensland and described as Lot 7 on Registered Plan 208247, Count of Ward, Parish of Tamborine with the title reference 17005019 (“the property”) to the Respondent and Terry Grant Van Der Velde (“the Trustees”) and John Gerrard Holmes (“the Co-Owner”) within seven (7) days of the date of this Order.
In the event that the Applicant fails to deliver up vacant possession of the Property in accordance with Order 2 above, that an Enforcement Warrant for Possession of the Property be issued forthwith in favour of the Trustees and the Co-Owner.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 513 of 2006

LILLE HOLMES (NEE KOSTESKA)

Applicant

And

R.S. DILLION & RAYMOND SHANE DILLON

Respondent

BRG 932 of 2006

LILLE HOLMES (NEE KOSTESKA)

Applicant

And

R.S. DILLION & RAYMOND SHANE DILLON

Respondent

BRG 73 of 2010

LILLE HOLMES (NEE KOSTESKA)

Applicant

And

P.D. SWEENEY PRINCIPAL, SV PARTNERS COURT APPOINTED TRUSTEES

Respondent

REASONS FOR JUDGMENT

Ex tempore

On 29 November, 2001 at about 8.30 pm at the intersection of Fryar Road and River Hills Road, Eagleby, there was a minor traffic accident. The reverberations of that traffic accident are still being felt today, and rather than the ripples from that traffic accident growing smaller over time, they have grown larger and larger. So much so that the ripples that now emanate from that singular event have taken on the proportion of a tsunami which now threatens to sweep away from Ms Holmes the very home in which she lives.
These applications before me are applications for review against an order of a registrar to not set aside a bankruptcy notice that was served…

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 Holmes v Dillon and Ors (No.2)

Details

AGLC: Holmes v Dillon and Ors (No.2) [2010] FMCA 399
Case: [2010] FMCA 399
Decision Date: 13 May 2010

CaseChat Overview and Summary

In Holmes v Dillon and Ors (No.2), the court dealt with an application for adjournment and subsequent enforcement of possession orders against the applicant, Mr Holmes. The legal dispute involved the property at 29 Plantation Road, Tamborine, Queensland, which Mr Holmes was ordered to vacate in favour of the Trustees and the Co-Owner, Mr Holmes. The court was tasked with deciding whether to grant the applicant’s request for adjournment and whether to enforce the possession orders against him.

The legal issues centred on the enforcement of property possession orders and the applicant's requests for adjournment. The applicant argued for a postponement of the enforcement due to various reasons, while the Trustees and Co-Owner sought immediate compliance with the court’s prior orders. The court needed to assess the merits of the adjournment application against the urgency of enforcing the possession orders.

In dismissing the application for adjournment, the court reasoned that the applicant had not demonstrated any exceptional circumstances warranting a postponement. The court emphasised the importance of enforcing property possession orders and the applicant's previous opportunities to comply with the orders. The court found no valid grounds for granting an adjournment and confirmed the necessity to enforce the possession orders. As a result, Mr Holmes was required to vacate the property within seven days or face the issuance of an Enforcement Warrant for Possession.

Orders

Orders of the court

BRG 513 of 2006

The applicant’s oral application for adjournment be dismissed.

BRG 932 of 2006

The applicant’s oral application for adjournment be dismissed.

BRG 73 of 2010

The applicant’s oral application for adjournment be dismissed.

And

The application filed on 29 January 2010 be dismissed.

The Applicant deliver up vacant possession of the property at 29 Plantation Road, Tamborine in the State of Queensland and described as Lot 7 on Registered Plan 208247, Count of Ward, Parish of Tamborine with the title reference 17005019 (“the property”) to the Respondent and Terry Grant Van Der Velde (“the Trustees”) and John Gerrard Holmes (“the Co-Owner”) within seven (7) days of the date of this Order.

In the event that the Applicant fails to deliver up vacant possession of the Property in accordance with Order 2 above, that an Enforcement Warrant for Possession of the Property be issued forthwith in favour of the Trustees and the Co-Owner.

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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