Jefferson and Collins v Lynam (A Bankrupt)

[2007] FMCA 732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JEFFERSON & COLLINS v LYNAM (A BANKRUPT) [2007] FMCA 732

BANKRUPTCY – Realisation of bankrupt’s property – application by trustees for bankrupt to vacate property so that it can be sold.

Bankruptcy Act 1966, s.30

Cook v Tagamilitsky [2001] FMCA 117

First Applicant:

Second Applicant:

PHILIP GREGORY JEFFERSON

GERALD THOMAS COLLINS

Respondent: JOHN JOSEPH LYNAM (A  BANKRUPT)

File number: BRG 191 of 2007

Judgment of: Wilson FM

Hearing date: 23 March 2007

Date of last submission: 23 March 2007

Delivered at: Brisbane

Delivered on: 23 March 2007

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Forbes Dowling Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: No appearance

ORDERS

1. The Respondent vacate the property described as Lot 137 on Registered Plan 138543, County Canning, Parish of Mooloolah being Title Reference 15193187 (“the Property”) and having a street address of 42 Amarina Avenue, Mooloolabah, Queensland, within fourteen (14) days of this Order.

2. In the event the Respondent fails to give vacant possession of the Property in accordance with Order 1, a Writ of Possesion issue forthwith.

3. The Applicant’s costs of these proceedings be paid in priority out of the property of the Bankrupt Estate of the Respondent.

4. Liberty to apply on two (2) days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 191 of 2007

PHILIP GREGORY JEFFERSON AND GERALD THOMAS COLLINS

Applicant

And

JOHN JOSEPH LYNAM (A BANKRUPT)

Respondent

REASONS FOR JUDGMENT

1. On 12 October 2001, the applicants were appointed trustees of the bankrupt estate of the respondent.  On 5 October 2004, a parcel of land owned by the respondent at Mooloolaba was transferred to the trustees pursuant to the Bankruptcy Act.  The trustees are desirous of selling the property to distribute the proceeds to creditors.  The respondent continues to reside at the premises and, despite requests, has refused to move.  The trustees apply for an order that the debtor vacate the property and, if he fails to do so, that a writ of possession issue forthwith.

2. Section 30 of the Bankruptcy Act, in my view, contemplates the making of such an order.  The trustees are clearly entitled to sell the asset to realise the proceeds for distribution to creditors.  As Federal Magistrate Raphael observed in Cook v Tagamilitsky [2001] FMCA 117 at paragraph [9] there is no specific section in the Bankruptcy Act dealing with the obligation of a debtor to vacate property which has been transferred to his trustees.  His Honour observed that it is obvious from a number of cases that the court has power to make such orders and, indeed, stay orders on terms.

3. In the present case, despite being served with the application and supporting material, the bankrupt has chosen not to appear and has chosen not to oppose the orders sought nor seek a stay of them.  In those circumstances so that the trustees can proceed with the orderly realisation of the estate of the bankrupt, I make orders in terms of paragraphs 1, 2 and 3 of the application filed 14 March 2007.

4. The orders I will make are set out at the beginning of these reasons for judgment.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Wilson FM

A/Associate:  Kristy Glover

Date:  17 May 2007