Lee (Trustee), in the Matter of the Bankrupt Estate of Breakwell v Breakwell (No 2)

[2021] FCCA 1623

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lee (Trustee), in the Matter of the Bankrupt Estate of Breakwell v Breakwell (No 2) [2021] FCCA 1623

File number(s):

BRG 18 of 2021

Judgment of:

JUDGE EGAN

Date of judgment:

13 July 2021

Catchwords:

BANKRUPTCY – application for writ of possession and delivery order for real property – no appearance by the respondent – failure by respondent to comply with previous order of the Court for the subject property to be vacated – application allowed

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s 78.

Civil Judgments Enforcement Act 2004 (WA), s 59.

Federal Circuit Court Rules 2001 (Cth), r 29.11.

Rules of the Supreme Court 1971 (WA), Order 46.2(1)(a).

Number of paragraphs:

7

Date of last submission/s:

12 July 2021

Date of hearing:

12 July 2021

Place:

Brisbane

Solicitor for the Applicant:

Mr Cashin of CLH Lawyers

Solicitor for the Respondent:

There being no appearance by or on behalf of the Respondent

ORDERS

BRG 18 of 2021

IN THE MATTER OF IN THE MATTER OF THE BANKRUPT ESTATE OF CHRISTINE BREAKWELL

BETWEEN:

LEE AS TRUSTEE OF THE BANKRUPT ESTATE OF CHRISTINE BREAKWELL ALSO KNOWN AS CHRISTINE ROBYNE BREAKWELL

Applicant

AND:

CHRISTINE BREAKWELL ALSO KNOWN AS CHRISTINE ROBYNE BREAKWELL

Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	13 JULY 2021

IT IS ORDERED THAT:

1.A property seizure and delivery order and writ of possession be issued forthwith in favour of the Applicant with respect to the property known as [address omitted] in the State of Western Australia, more particularly described as [description omitted] (“Property”) pursuant to section 78 of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 29.11 of the Federal Circuit Court Rules 2001 (Cth).

2.The Applicant may remove and dispose of any and all vehicles, chattels, personal belongings and rubbish (“Personal Property”) on the Property which have not vested in the Applicant, as the Applicant sees fit, and the Applicant may deem that Personal Property as abandoned, or if appropriate, divisible assets of the Respondent’s bankrupt estate.

3.The Applicant’s costs of this application be paid from the Respondent’s bankrupt estate.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. On 19 March 2021, this Court made an order requiring the respondent by herself, her servants and agents, to vacate the real property situated at [address omitted], in the state of Western Australia. 

2. On 20 May 2021, the applicant filed an application in a case which sought the following orders:

   “1. A property seizure and delivery order and writ of possession issue forthwith in favour of the Applicant with respect to the property known as [address omitted] in the State of Western Australia, more particularly described as [description omitted], Volume 1511 Folio 740 ("Property"), pursuant to:

   a. section 78(2) of the Federal Circuit Court of Australia Act 1999 (Cth);

   b. rule 29.11 of the Federal Circuit Court Rules 2001 (Cth) ("Rules");

   c. order 46.2(1)(a) of the Rules of the Supreme Court 1971 (WA); and

   d. section 59(1) of the Civil Judgments Enforcement Act 2004 (WA).

   2. The Applicant may remove and dispose of any and all vehicles, chattels, personal belongings and rubbish ("Personal Property") on the Property which have not vested in the Applicant, as the Applicant sees fit, and the Applicant may deem that Personal Property as abandoned, or if appropriate, divisible assets of the Respondent's bankrupt estate.

   3. The Applicant's costs of this application and proceeding be paid from the Respondent's bankrupt estate.”

   [Addresses and descriptions omitted]

3. The application in a case was filed because the respondent failed to vacate the property as ordered by this Court on 19 March 2021.  The Court has had regard to the affidavit material relied upon by the applicant (and as listed in the list of authorities document filed on 7 July 2021), and the Court is satisfied that the orders requiring service of each of the order of the Court made on 19 March 2021 and an affidavit of service deposing to such service, also set out in such order, have been complied with.

4. The Court is satisfied that in circumstances where an order of the Court made for a property to be vacated has not been complied with, that it has power to make an order in the form of the order filed on behalf of the applicant in the registry of this court on 20 May 2021. 

5. The respondent had been given the opportunity, on a number of occasions, to enter an appearance in this matter, and to argue that orders of the court requiring that the subject property be vacated, ought not to be made.  The respondent has made no attempt to appear before the Court, nor has any reasonable explanation for the respondent’s absence been provided by her or on her behalf.

6. In all the circumstances, the Court makes an order today in terms of the draft proposed order filed on 20 May 2021, which has been marked as Exhibit 1 and placed on the Court file.  In that regard, it should be noted that the space for insertion of the date of the making of the proposed order has been written in by me as “13 July 2021”, and that it has been signed and initialled by me, both next to such insertion, and at the end of the draft order.

7. It is ordered accordingly.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate: 

Dated:       13 July 2021