Mansfield (Trustee) v Gounder, in the matter of Gounder
[2025] FedCFamC2G 780
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansfield (Trustee) v Gounder, in the matter of Gounder [2025] FedCFamC2G 780
File number(s): BRG 666 of 2024 Judgment of: JUDGE EGAN Date of judgment: 28 May 2025 Catchwords: BANKRUPTCY– Application for declaration and orders requiring vacant possession of property and the sale of such property – no arguable defence to the application – orders accordingly. Division: Division 2 General Federal Law Number of paragraphs: 12 Legislation: Bankruptcy Act 1966 (Cth), s. 30, s. 58, s. 77(1)(e), s. 77(1)(g), s. 116, s. 134(a), s. 134(1)(k), s. 134(1)(0), s. 134(3) Date of last submission/s: 10 April 2025 Date of hearing: 8 April 2025 Place: Brisbane Solicitor for the Applicant: Mr B. Long, Celtic Legal Counsel for the Respondent: the Respondent appeared on her own behalf ORDERS
BRG 666 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF SHOBNA KUMARI GOUNDER, BANKRUPT
BETWEEN: DAVID IAN MANSFIELD AS TRUSTEE OF THE BANKRUPT ESTATE OF SHOBNA KUMARI GOUNDER
Applicant
AND: SHOBNA KUMARI GOUNDER
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
28 MAY 2025
IT IS DECLARED THAT:
1.Pursuant to sections 58 and 116 of the Bankruptcy Act 1966 (Cth) (BA), the Respondent's interest in the land at 6 Windamere Street, Warner in the State of Queensland being more particularly described as Lot 1282 on Survey Plan 232376 (Property), vested in the Applicant as trustee of the bankrupt estate of the Respondent on 11 October 2018.
AND IT IS ORDERED THAT:
2.Pursuant to ss 30, 77(1)(e) and 77(1)(g) of the BA, the Respondent and any other occupants of the whole of the Property, within 28 days:
(a)vacate the Property and provide vacant possession to the Applicant;
(b)deliver up to the Applicant the keys for any buildings and improvements on the Property (if any); and
(c)remove all personal property, being vehicles, rubbish and chattels (together Personal Effects) which are not vested in the Applicant (if any).
3.If the Respondent or any occupier should fail to deliver up vacant possession of or the keys to the Property that a warrant of possession for the Property shall be issued forthwith in favour of the Applicant and for that purpose an affidavit sworn by the Applicant or the Applicant's lawyer deposing to the non-compliance with paragraph 2(a) and (b) of this Order shall be sufficient proof to enable the issue of the warrant of possession when filed with the Court.
4.In the event the Respondent or any occupier fails to comply with paragraph 2(c) of this Order, the Applicant is authorised and empowered to remove and/or dispose of any Personal Effects that remain on the Property at the cost of the Respondent after 28 days, without any obligation to account to the Respondent for such Personal Effects.
5.Pursuant to ss. 134(1)(a), 134(1)(o) and 134(3) of the BA, the Applicant is authorised to sell the Property forthwith and is appointed as trustee for its sale.
6.The Respondent must do all things and sign all documents as may be necessary (if any) to effect a sale of the Property within such time as is nominated by the Applicant, such documents to be provided and/or prepared by the Applicant's lawyer and/or the lawyer for the purchaser(s), as the case requires.
7.Pursuant to s. 134(1)(k) of the BA, in default of compliance with paragraph 6 above, should the Respondent not do all things or sign such documents within such time as may reasonably be required by the Applicant, upon expiry of the period so nominated, the Applicant is authorised and empowered forthwith to do all things and sign all documents on behalf of the Respondent including by signing any contract of sale, discharge of mortgage, authority, transfer of land or other document required to effect a sale of any such Property.
8.The proceeds of sale of the Property be applied as follows:
(a)first, in payment of all selling costs including agent's commission, advertising and marketing expenses, conveyancing and legal costs associated with the sale;
(b)second, in payment of any outstanding rates, taxes, charges, owners corporation fees or other outgoings affecting the Property or deriving from or associated with the ownership or maintenance of the Property up to the time of settlement on the sale of that Property;
(c)third, in payment of the monies owing to any secured creditor;
(d)fourth, in repayment of the costs of removal and/or disposal of all such personal property as may remain at any such Property;
(e)fifth, all remaining proceeds are to be paid to the applicant as trustee of the bankrupt estate of the Respondent.
9.The Applicant's costs of this proceeding be paid out of the bankrupt estate of the Respondent in accordance with part 109(1)(a) of the BA.
Endorsement pursuant to Rule 25.07 of the Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth)
Should the Respondent fail to comply with any order of the Court referred to above, the Respondent may be liable to imprisonment, sequestration of property or punishment for contempt.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
Introduction
On 9 October 2024, the applicant filed an application seeking the following orders:
1.Pursuant to sections 58 and 116 of the Bankruptcy Act 1966 (Cth) (BA), a declaration the Respondent's interest in the land at 6 Windamere Street, Warner in the State of Queensland being more particularly described as Lot 1282 on Survey Plan 232376 (Property), vested in the Applicant as trustee of the bankrupt estate of the Respondent on 11 October 2018.
2.Pursuant to ss 30, 77(1)(e) and 77(1)(g) of the BA, the Respondent and any other occupants of the whole of the Property, within 28 days:
a. vacate the Property and provide vacant possession to the Applicant;
b. deliver up to the Applicant the keys for any buildings and improvements on the Property (if any); and
c. remove all personal property, being vehicles, rubbish and chattels (together Personal Effects) which are not vested in the Applicant (if any).
3. If the Respondent or any occupier should fail to deliver up vacant possession of or the keys to the Property that a warrant of possession for the Property shall be issued forthwith in favour of the Applicant and for this purpose an affidavit sworn by the Applicant or the Applicant's lawyer deposing to the non-compliance with paragraph 2(a) and (b) shall be sufficient proof to enable the issue of the warrant of possession when filed with the Court.
4. In the event the Respondent or any occupier fails to comply with paragraph 2(c), the Applicant be authorised and empowered to remove and/or dispose of any Personal Effects that remain on the Property at the cost of the Respondent after 28 days, without any obligation to account to the Respondent for such Personal Effects.
5. An order that pursuant toss 134(1)(a), 134(1)(o) and 134(3) of the BA, the Applicant is authorised to sell the Property forthwith and is appointed as trustee for its sale.
6. An order that the Respondent must do all things and sign all documents as may be necessary (if any) to effect a sale of the Property within such time as is nominated by the Applicant, such documents to be provided and/or prepared by the Applicant's lawyer and/or the lawyer for the purchaser(s), as the case requires.
7. An order that pursuant to par 134(1)(k) of the BA, in default of compliance with paragraph 6 above, should the Respondent not do all things or sign such documents within such time as may reasonably be required by the Applicant, upon expiry of the period so nominated, the Applicant is authorised and empowered forthwith to do all things and sign all documents on behalf of the Respondent including by signing any contract of sale, discharge of mortgage, authority, transfer of land or other document required to effect a sale of any such Property.
8. An order that the proceeds of sale of the Property be applied as follows:
a. first, in payment of all selling costs including agent's commission, advertising and marketing expenses, conveyancing and legal costs associated with the sale;
b. second, in payment of any outstanding rates, taxes, charges, owners corporation fees or other outgoings affecting the Property or deriving from or associated with the ownership or maintenance of the Property up to the time of settlement on the sale of that Property;
c. third, in payment of the monies owing to any secured creditor;
d. fourth, in repayment of the costs of removal and/or disposal of all such personal property as may remain at any such Property;
e. fifth, all remaining proceeds are to be paid to the applicant as trustee of the bankrupt estate of the Respondent.
9. An order that the Applicant's costs of this proceeding be paid out of the bankrupt estate of the Respondent in accordance with par 109(1 )(a) of the BA.
10. Such further or other orders that the Court deems appropriate.
On 11 October 2018, the applicant had been appointed trustee of the respondent’s bankrupt estate. Between the time of such appointment and the hearing of the application on 8 April 2025, the respondent had resisted the applicant’s attempts to reasonably obtain vacant possession of the Property.
In his affidavit sworn on 8 October 2024, Mr Brendan Long, Solicitor, deposed as follows:
1. I am the Director of Celtic Legal, the solicitors for the Applicant and I am duly authorised to make and swear this affidavit on his behalf.
2. On or around 11 October 2018, the Applicant was appointed trustee for the bankrupt estate of the Respondent ("Bankruptcy").
3. A copy of the Certificate of Appointment of Trustee is attached marked BL-1.
4. The Respondent is a joint owner of the property located at 6 Windamere Street, Warner in the State of Queensland ("the Property").
5. A copy of the title search of the Property is attached marked BL-2.
6. As a result of the Bankruptcy, and pursuant to section 58(1)(a) of the Bankruptcy Act 1966 (Cth), the Property now vests with the Applicant for the bankrupt estate of the Respondent.
7. On 31 October 2022, the Respondent was sent a notice to vacate the Property ("Notice").
8. A copy of the Notice is attached marked BL-3.
9. On 2 November 2022, the Respondent confirmed she would vacate the Property.
10. The Respondent's email dated 2 November 2022 is attached marked BL-4.
11. Between 3 November 2022 and 8 November 2023, various emails were exchanged between the solicitors for the Applicant and Respondent in relation to the Respondent vacating the Property.
12. The email correspondence is attached marked BL-5.
13. As of the date of swearing this affidavit, the Respondent has failed, refused or neglected to comply with the Notice and continues to reside in the Property.
14. The co-tenant noted on the title of the Property was the husband of the Respondent and is now deceased.
15. Attached marked BL-6 is a copy of the death certificate of Mr Gounder.
16. The will of Mr Gounder provided that the Respondent was to receive Mr Gounder's interest in the Property, and as such, the entirety of the Property now vests in the Applicant.
17. A copy of Mr Gounder's will is attached marked BL-7.
18. I verily believe that an order from this Honourable Court is required to remove the Respondent, and/or any other occupants of the Property, from the Property.
In the applicant’s affidavit filed on 7 April 2025, he relevantly deposed as follows:
1. I am the Trustee in bankruptcy of the Bankrupt Estate of Shobna Kumari Gounder, and I am authorised to swear this affidavit.
2. On 11 October 2018, I, David Ian Mansfield was appointed as Trustee of the Bankrupt Estate of Shobna Kumari Gounder pursuant to a sequestration order.
3. The Creditors of the Bankrupt Estate known to the Trustee as of today are exhibited in the table below:
Creditor Name Statement of Affairs Amount ($) Advised Amount ($) Estimated Amount Owing ($) Australian Tax Office 2,129 2,128 2,168 Cheryl Gounder 120,000 279,765 279765 Commonwealth Bank of Australia 9,456 9,455 Panthera Finance 21,602 21,601 21,601 Queensland Motorways Management Pty Ltd 51,964 51,963 51,963 Superior Alignments Pty Ltd 2,000 11,464 1,900 Total 207,151 366,921 366,852 3.The estimated amount of the trustee's costs and expenses are exhibited in the table below:
Category Amount (excl. GST) ($) Renumeration 153,245 Expenses 28,385 Total renumeration and expenses
(Excl. GST)181,629 Legal fees and disbursements 100,473 Total Trustee’s costs (excl. GST) 282,102 5. The petitioning creditor costs of $6,898.20 ordered on 11 October 2028 remain unpaid. The petitioning creditor has also not been paid the costs ordered on 25 March 2019 by Judge Jarrett (costs of review) nor the costs ordered of the appeal before Derrington J on 6 December 2019.
At the hearing before the Court on 8 April 2025, the applicant made oral submissions which were in main part emotive and were unrelated to the issues before the Court for its consideration. To the extent that the submissions were germane to the issues raised in the application before the Court, those submissions disclosed no arguable defence to the relief sought in the application
After the hearing of the application on 8 April 2025, the respondent filed a “Reply” and an “Affidavit” on 10 April 2025.
Paragraphs 1 – 18 of the respondent’s Reply were as follows:
1.I Shobna Gounder, 6 Windamere Street, Warner, Qld, 4500, Accountant say on oath
I am Shobna Kumari Gounder and I am authorised to make this affidavit.
2.I oppose this application of David Mansfield of Deloitte, Paramatta.
3.I oppose all the notes and paragraphs of his application.
4.The court has been notified several times of my personal domestic violence situation hence no action was taken to end this case by forgiving the amount of debt as nearly half of the debt which is mostly the trustees is all made up.
5.I have repeatedly requested for the trustees' fees to stop being charged.
6.The trustees have always made it more difficult for me to pay the debt.
7.When I was made bankrupt not on correct grounds, I had Mr Gounder dying in the hospital, if there had been anyone else my debts would have been written off, the actual debt to Superior Alignments was paid off, the unpaid amount was legal fees.
8.I have dozens of accounting practitioners whom I recently spoke to about this case and they told me that I am being targeted here to take financial advantage.
9.The Trustees failed to act fairly in dealing with this case and resolving the matter when the debt was only $35.000.
10. The debt owed to Cheryl Gounder is under arrangement therefore I can deal with this separately.
11. I will sell my block of land at 6 Harris St, Hivesville, Qld which will fetch approximately $60k to pay my toll debt and CBA Credit card debt.
12. ATO and I can only approximately $50k to a maximum of $100k in legal fees.
13. The Trustees fees has been made up and hence either I will get Senior Partners of accounting firms to review if the fees are legitimate and the fees should have been stopped when the debt of the notice to Superior Alignments was paid in full, the trustees do not have a right to keep charging fees, its, like whoever can charge whatever and this is whats been happening, I have become a victim of financial abuse and I therefore upon advise from other lawyers accuse the trustees of negligence and trying take advantage of my personal situation.
14. My business colleagues were shocked to see the amount of fees charged, they all strongly advised that the trustees should have stopped charging fees when the debt was paid, consideration should have been given to my personal situation too. The senior accountants have advised that the ATO and the Income Tax Act of Australia disallows for fees to be charged in this manner as Deloitte has charged, this is clearly taking advantage of the situation and its financial abuse. The court must look into this and not ignore this.
15. I have spoken to an agent to sell the Hivesville land, CBA bank is processing my application for refinance.
16. I will be able to Cheryl under our arrangement, which Cheryl is happy with, I can pay toll debt and CBA Visa Debt and Panthera Finance debt and trustees fees of only $50k in total maximum.
17. I must say we are constantly fighting against abuse, domestic violence abuse and its mentally wrecking.
18. I have started to work and would like to be allowed to work as I may end up with a mental breakdown soon. I can't bear so much injustice done to us, let live peaceful and freely.
Paragraph 1 of Part B of the respondent’s affidavit was as follows:
1.This is a counterclaim for the losses incurred by me in response to this bankruptcy being dragged on unlawfully by the trustees, David Mansfield at Deloitte.
•Loss of income, I work as an accountant and my average yearly salary is $90,000 and I haven't been able to work for the last 5 years as a result of this, the amount of $450,000 is claimed as a result.
•Mortgage arrears of $120,000, I couldn't pay my mortgage repayments as a result of this unlawful bankruptcy which should have ended.
•The legal fees of approximately $250,000 which shouldn't have come about, as I have repeatedly made attempts to pay the debt however the trustees took advantage of my personal circumstances.
None of the material filed on behalf of the respondent disclosed any foundation for the dismissal of any part of the applicant’s application. The respondent has not demonstrated any factual or legal basis which might constitute a defence to the applicant’s claimed relief.
The Court is satisfied that the orders sought by the applicant are in all respects appropriate.
The Court finds that the applicant is entitled to vacant possession of the property situated at 6 Windamere Street, Warner in the State of Queensland, and that the applicant is entitled to appointed as trustee for the sale of such property in order to facilitate the administration of the respondent’s bankrupt estate.
The Court accordingly makes a declaration and orders as follows:
IT IS DECLARED THAT:
1. Pursuant to sections 58 and 116 of the Bankruptcy Act 1966 (Cth) (BA), the Respondent's interest in the land at 6 Windamere Street, Warner in the State of Queensland being more particularly described as Lot 1282 on Survey Plan 232376 (Property), vested in the Applicant as trustee of the bankrupt estate of the Respondent on 11 October 2018.
AND IT IS ORDERED THAT:
2. Pursuant to ss 30, 77(1)(e) and 77(1)(g) of the BA, the Respondent and any other occupants of the whole of the Property, within 28 days:
a. vacate the Property and provide vacant possession to the Applicant;
b. deliver up to the Applicant the keys for any buildings and improvements on the Property (if any); and
c. remove all personal property, being vehicles, rubbish and chattels (together Personal Effects) which are not vested in the Applicant (if any).
3. If the Respondent or any occupier should fail to deliver up vacant possession of or the keys to the Property that a warrant of possession for the Property shall be issued forthwith in favour of the Applicant and for that purpose an affidavit sworn by the Applicant or the Applicant's lawyer deposing to the non-compliance with paragraph 2(a) and (b) of this Order shall be sufficient proof to enable the issue of the warrant of possession when filed with the Court.
4. In the event the Respondent or any occupier fails to comply with paragraph 2(c) of this Order, the Applicant is authorised and empowered to remove and/or dispose of any Personal Effects that remain on the Property at the cost of the Respondent after 28 days, without any obligation to account to the Respondent for such Personal Effects.
5. Pursuant to ss. 134(1)(a), 134(1)(o) and 134(3) of the BA, the Applicant is authorised to sell the Property forthwith and is appointed as trustee for its sale.
6. The Respondent must do all things and sign all documents as may be necessary (if any) to effect a sale of the Property within such time as is nominated by the Applicant, such documents to be provided and/or prepared by the Applicant's lawyer and/or the lawyer for the purchaser(s), as the case requires.
7. Pursuant to s. 134(1)(k) of the BA, in default of compliance with paragraph 6 above, should the Respondent not do all things or sign such documents within such time as may reasonably be required by the Applicant, upon expiry of the period so nominated, the Applicant is authorised and empowered forthwith to do all things and sign all documents on behalf of the Respondent including by signing any contract of sale, discharge of mortgage, authority, transfer of land or other document required to effect a sale of any such Property.
8. The proceeds of sale of the Property be applied as follows:
a. first, in payment of all selling costs including agent's commission, advertising and marketing expenses, conveyancing and legal costs associated with the sale;
b. second, in payment of any outstanding rates, taxes, charges, owners corporation fees or other outgoings affecting the Property or deriving from or associated with the ownership or maintenance of the Property up to the time of settlement on the sale of that Property;
c. third, in payment of the monies owing to any secured creditor;
d. fourth, in repayment of the costs of removal and/or disposal of all such personal property as may remain at any such Property;
e. fifth, all remaining proceeds are to be paid to the applicant as trustee of the bankrupt estate of the Respondent.
9. The Applicant's costs of this proceeding be paid out of the bankrupt estate of the Respondent in accordance with part 109(1)(a) of the BA.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 28 May 2025
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