Kirk (Trustee), in the matter of Weitemeyer (Bankrupt) v Weitemeyer
[2022] FedCFamC2G 948
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kirk (Trustee), in the matter of Weitemeyer (Bankrupt) v Weitemeyer [2022] FedCFamC2G 948
File number(s): BRG 171 of 2022 Judgment of: JUDGE EGAN Date of judgment: 23 November 2022 Catchwords: BANKRUPTCY – Where application for delivery up of possession of property made on behalf of trustee – where numerous adjournments of hearings had not resulted in any payout of debts owed to creditors – where applicant entitled to orders sought – orders accordingly. Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 14 November 2022 Date of hearing: 14 November 2022 Place: Brisbane Solicitor for the Applicant: Mr Cocolas of SLF Lawyers Respondents: Self-represented litigants ORDERS
BRG 171 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF WARREN WEITEMEYER AND BETHANY WEITEMEYER, BANKRUPTS
BETWEEN: DARRYL EDWARD KIRK IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF WARREN WEITEMEYER AND BETHANY WEITEMEYER
Applicant
AND: BETHANY WEITEMEYER
First Respondent
WARREN WEITEMEYER
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
22 November 2022
THE COURT ORDERS THAT:
1.The Respondents deliver up vacant possession of the property known as 44A Eckersley Avenue, Buderim QLD 4556 more particularly described as Lot 4, Registered Plan 128852 Title Reference 12668166 (the Property) to the Applicant within 30 days of 23 November 2022.
2.The Respondents deliver up all keys and documents for all buildings and improvements on the Property to the Applicant within 30 days of 23 November 2022.
3.The Respondents must remove from the Property all vehicles, rubbish and chattels which have not vested with the Applicant (the personal property) within 30 days of 23 November 2022.
4.In the event that the Respondents fail to deliver up vacant possession of the Property in accordance with orders 1 to 3 above, a Writ of Possession shall issue forthwith.
5.In the event that the Respondents fail to comply with order 3 above, the Applicant is empowered to remove and dispose of the personal property on the Property, as he sees fit, after the expiry of 30 days of 23 November 2022.
6.The Applicant is appointed as trustee for the sale of the Property.
7.The Applicant is empowered to do everything necessary or expedient to execute all documents on behalf of the Respondents to give effect to these orders as necessary, including the following documents:
(a)any contract of sale;
(b)any nomination form or similar document;
(c)any transfer of land;
(d)any notice to be issued under a contract of sale; and
(e)any other document contemplated or envisaged by, ancillary to or otherwise related to, any of the above documents.
8.The net proceeds of sale of the Property, after payment of what shall be due to any encumbrancer according to their priorities and of all other proper costs, charges and expenses of the sale be paid to the Applicant.
9.The Applicant’s costs be paid out of the proceeds of sale of the Property.
10.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
By an Application filed on 14 April 2022, the applicant trustee of the bankrupt estates of each of the respondents named Bethany Weitemeyer and Warren Weitemeyer sought orders, inter alia, for delivery up of vacant possession of the property situated at 44A Eckersley Avenue, Buderim, Qld 4556 more particularly described as Lot 4 on Registered Plan 128852 having Title Reference 12668166. The applicant was relevantly the sole registered proprietor of the said property at the time of the filing of such application.
It was not in dispute at the time of the hearing of the application that sequestration orders had been made against the estates of the respondents on 30 June 2021.
The matter had been listed before the Court on 10 May 2022 when interlocutory orders were made so as to enable the matter to proceed to a hearing on 27 September 2022. At the time of the 10 May 2022 hearing, the male respondent assured the Court that funds sufficient to pay out the debt owed to the petitioning creditors would be forthcoming in a short period of time. An adjournment of the hearing was granted on that basis.
On 27 September 2022, the male respondent again asked the Court for an adjournment on the basis that funds sufficient to pay out the creditor’s debt would imminently be received and forwarded to the lawyers for the applicant. Prior to granting the application for an adjournment, the following exchange occurred during the course of the hearing:
“MR WEITEMEYER: Yes, your Honour, I am, so that we can pay – we’ve always had the intention to pay our creditors, always.
HIS HONOUR: Yes.
MR WEITEMEYER: And we’ve been thwarted at every – every time we’ve tried. And we’ve now got a situation where a fellow, a friend of ours, is bringing a bank cheque across and – in the next couple – few weeks. And I would like to seek an adjournment
HIS HONOUR: Would you appreciate, Mr Weitemeyer, that if I was to accede to that application, it would be your last chance.
MR WEITEMEYER: Absolutely, your Honour.
HIS HONOUR: You understand that?
MR WEITEMEYER: I absolutely understand.
HIS HONOUR: Mr Cocolas.
MR COCOLAS: Your Honour, I’ve had intimate knowledge of this matter since acting for the
HIS HONOUR: I appreciate that, Mr Cocolas.
MR COCOLAS: We’ve heard these promises before.
HIS HONOUR: Well, Mr Cocolas, the – you’ve never heard Mr Weitemeyer acknowledge that this is his last chance, and all he wants is three weeks. So I’m disinclined to facilitate the removal of people who have been living in a home for many, many years, in circumstances where, when the matter next comes before the court, if he hasn’t secured payment – you appreciate that I’m going to have to make the order, Mr Weitemeyer?
MR WEITEMEYER: I absolutely understand that, your Honour.
HIS HONOUR: All right. So you have a concession there, Mr Cocolas.
MR COCOLAS: Thank you, your Honour.
HIS HONOUR: All right. So on the basis of the concession from Mr Weitemeyer that should moneys not come into his possession sufficient to pay out the debt owing by the estate – I will say within four weeks. Four weeks?
MR WEITEMEYER: Yes. That would be fine, your Honour. Thank you.”
When the matter was next listed for hearing on 14 November 2022, the male respondent conceded that he had not paid any funds to the lawyers for the applicant. He asked for another adjournment so that that might occur.
The Court had indulged the respondents in terms of their applications for adjournments which had not in any respect proven to be fruitful. There has been no settlement of the application, or the annulment of the bankruptcies. There was no affidavit evidence before the Court to indicate to the Court’s satisfaction that any funds would be forthcoming in the near future.
The applicant is by law required to carry out statutory functions designed to facilitate the due administration of bankrupt estates. Such statutory duties cannot be carried out if there is no finality to the bringing of applications for possession such as is the case here.
Consistently with the concession made on behalf of the respondents by the male respondent on 17 September 2022, the applicant is entitled by Court order to the relief sought in its application.
And it is so ordered.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 November 2022
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