Lo Pilato (Trustee), in the matter of Ghougassian (Bankrupt) v Ghougassian (No 3)

The case of Lo Pilato (Trustee), in the matter of Ghougassian (Bankrupt) v Ghougassian (No 3) involves an application by the Trustee, Lo Pilato, against the bankrupt Dr Ghougassian for the delivery up and vacant possession of a property registered in Dr Ghougassian's name. The Trustee seeks this to enable the sale of the property to satisfy Dr Ghougassian's debts. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues in this case were whether the Court should make a declaration that the property vests in the Trustee, and whether the Court has the power to make the other orders sought by the Trustee, which would enable the Trustee to take possession of the property. The Trustee sought a declaration under section 58 of the Bankruptcy Act 1966 (Cth) and orders for vacant possession, removal of personal property, and sale of the property.

The Court found that there was no dispute that the property had vested in the Trustee upon the making of the sequestration order. The Court held that a declaration should only be made if there is a legal controversy, the party seeking the declaration has a real interest in obtaining it, there is a proper contradictor, and the declaration serves a legitimate purpose and is of utility. Given that there was no dispute about the effect of section 58(1) of the Bankruptcy Act on the property, the Court found that there was no utility in making the declaration sought by the Trustee.

As for the other orders sought by the Trustee, the Court found that it had the power to make such orders, which would enable the Trustee to take possession of the property. The Court noted that Dr Ghougassian had failed to comply with the requirements of the Civil Procedure Act and the UCPR for obtaining a writ of possession, but found that this did not prevent the Court from making the orders sought by the Trustee.

The Court granted the relief sought by the Trustee, subject to extending the time for vacant possession and removal of personal property from 28 to 42 days. The Court also ordered that the property be sold free of encumbrances by the Trustee and that the proceeds of sale be applied in a specified manner and priority.

In summary, the Court granted the Trustee's application for vacant possession and removal of personal property from the property, but refused to make the declaration sought by the Trustee as it would have no practical effect. The Court found that it had the power to make the other orders sought by the Trustee, which would enable the Trustee to take possession of the property and sell it to satisfy Dr Ghougassian's debts.