Kazar in his capacity as trustee for the Bankrupt Estate of Blue v Blue

[2025] NSWSC 631

Supreme Court

New South Wales

Medium Neutral Citation:

Kazar in his capacity as trustee for the Bankrupt Estate of Blue v Blue [2025] NSWSC 631

Hearing dates:

12 June 2025

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Equity - Real Property List

Before:

Pike J

Decision:

(1) Pursuant to s 14 of the Civil Procedure Act 2005, the requirement in rule 6.3(f) of the Uniform Civil Procedure Rules 2005 to have commenced these proceedings by way of statement of claim be dispensed with.

(2)   Judgment for the plaintiffs for possession of the land comprised in folio identifier X, being the land situated at and known as Unit X, X Henry Parry Drive, Gosford, NSW, 2250 (the Property).

(3)   The plaintiffs are to affix a sealed copy of this order to the front door of the Property, and place a sealed copy of this order in the mailbox for the Property, within 7 days of the date on which this order is made.

(4)   The plaintiffs have leave to issue a writ of possession in respect of the Property on or after 11 July 2025.

Catchwords:

LAND LAW – possession of land – claim by trustee in bankruptcy against bankrupt – where bankrupt has not in engaged in proceedings – judgment for possession

Legislation Cited:

Bankruptcy Act 1966 (Cth), ss 19 and 58

Real Property Act 1900 (NSW), s 90

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Henry Joseph Kazar in his capacity as trustee for the Bankrupt Estate of Richard Colin Blue (first plaintiff)
Declan Lane in his capacity as trustee for the Bankrupt Estate of Richard Colin Blue (second plaintiff)
Richard Colin Blue (defendant)

Representation:

Solicitors:
Chamberlains Law Firm (plaintiffs)

File Number(s):

2024/00429410

Publication restriction:

Nil

JUDGMENT (EX TEMPORE REVISED FROM TRANSCRIPT)

1. The plaintiffs move on the relief set out in paras 3 and 4 of the summons filed 19 November 2024.

2. The background and relevant facts are quite straightforward.

3. On 11 July 2024, the defendant became bankrupt by way of a sequestration order made against him. The plaintiffs were appointed the trustees of the defendant’s bankrupt estate.

4. The plaintiffs have made numerous attempts to contact the defendant at his known residential home, however, the defendant has failed to provide the plaintiffs with a completed bankruptcy form or a statement of affairs.

5. As at the date of the plaintiffs’ appointment, the defendant’s residential home appears to have been the property located at Lot X in Strata Plan X at Gosford, also known as Unit X, X Henry Parry Drive, Gosford in the state of New South Wales (Property).

6. Pursuant to s 58 of the Bankruptcy Act, the property of the defendant, including the Property, vested in the plaintiffs as trustees of the defendant’s bankrupt estate.

7. Pursuant to s 19(1)(f) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), the plaintiffs have a duty to take appropriate steps to recover property for the benefit of the bankrupt estate. To that end, the plaintiffs have written to the defendant requesting he provide vacant possession of the Property. The defendant has not responded.

8. On 3 June 2025, the plaintiffs were recorded on the title of the Property in the First Schedule as registered proprietors of the estate in fee simple of the Property, following the lodgement of a NSW Land Registry Bankruptcy Application pursuant to s 90 of the Real Property Act 1900 (NSW).

9. I am satisfied that the summons and the evidence to be relied upon by the plaintiffs in these proceedings have been served on the defendant pursuant to orders previously made by the Court dispensing with personal service. That includes posting a copy of the documents by express post to the Property, as well as affixing a copy of the document at the front door of the Property.

10. There is evidence before the Court that the defendant appears to still reside at the Property but, for whatever reason, has chosen not to accept personal service in the ordinary course, or to take any active role in the proceedings. I am satisfied that the defendant is aware of the proceedings, including the hearing today, and, as I said above, for whatever reason, has chosen not to take any active role in response to the proceedings.

11. The essence of the relief sought by the plaintiffs today is for possession of the land comprised in the Property.

12. There is one procedural irregularity that I need to deal with. Ordinarily, proceedings for possession are commenced by statement of claim. In the present case, the proceedings were commenced by Summons. Notwithstanding the procedural irregularity, the necessary documents in relation to a possession case have been served on the defendant in accordance with orders previously made by the Court. I am satisfied that this is an appropriate case to dispense with the need to file a statement of claim and to permit the matter to proceed by way of summons. I will make an order to this effect in the final orders that I make.

13. In circumstances where the defendant has been made a bankrupt, the plaintiffs have been appointed the trustees of the defendant’s bankrupt estate, and the Property, was property of the bankrupt at the date of his bankruptcy, it is clear, as is now reflected on the title to the Property, that the plaintiffs are the registered proprietors of the Property and that the defendant no longer has a right to possession of the Property. It is clear in my view that the plaintiffs are entitled to possession of the Property to the exclusion of the defendant, and accordingly orders should be made for possession.

14. The plaintiffs have also sought an order that they have leave to issue a writ of possession in respect of the Property on or after 11 July 2025. In my view, such an order is appropriate.

15. For these reasons, the Court makes the following orders:

1. Pursuant to s 14 of the Civil Procedure Act 2005, the requirement in rule 6.3(f) of the Uniform Civil Procedure Rules 2005 to have commenced these proceedings by way of statement of claim be dispensed with.

2. Judgment for the plaintiffs for possession of the land comprised in folio identifier X, being the land situated at and known as Unit X, X Henry Parry Drive, Gosford, NSW, 2250 (the Property).

3. The plaintiffs are to affix a sealed copy of this order to the front door of the Property, and place a sealed copy of this order in the mailbox for the Property, within 7 days of the date on which this order is made.

4. The plaintiffs have leave to issue a writ of possession in respect of the Property on or after 11 July 2025.

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Decision last updated: 18 June 2025