McDermott, K.M. v Worrell, I

[1990] FCA 353

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL 1)IVISlON	1
BANRUPTCY DISTRICT	1 QLD B360 of 1990
QF THE STATE OF OUEENSLAND	1

RE:  KIM MAREE McDERMOTT and GERARD MICHAEL
McDERMOTT

EX PARTE: IVOR WORRELL

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	24 MAY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    On or before Sunday, 27 May 1990, the respondents, Gerard Michael McDermott and Kim Maree McDermott, vacate and give up possession of the residence at 13 Longboat Place, Bayview Anchorage, and on or before that day (27 May 1990), that they deliver the keys of the premises to the trustee's office or trustee's representative.

NOTE :

- Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.

REQISTRY

RECEIVED

20 JUL1990

FEDERAL COURT OF

AUSTRALIA PRlNClPAL

IN THE FEDERAL COURT OF AUSTmIA	)
GEN E.WRALDDIVISZQB	)
BANRUPTCY DISTRICT	1 QLD B360 of 1990
OF THE STATE OF OUEENSWD	1

RE :  KIM MAFtEE McDERMOTT and GERARD MICHAEL
McDERMOTT

EX PARTE: IVOR WORRELL

PINCUS J.
BRISBANE

24 MAY 1990

EX TEMPORE REASONS FOR JUDGMENT

In this matter, Mr McDermott has resisted an application made by the trustee for an order that the bankrupts vacate the premises in question; viz. a residence at

13 Longboat Place, Bayview Anchorage. According to the

trustee's affidavit, the house was valued at $220,000 and the trustee says that the bankrupts negotiated to sell the property to people called Way for $210,000. The affidavit goes on to say that a price was negotiated, namely $215,000 and a contract was drawn up accordingly.

Then, so the trustee's case says, the bankrupts altered the contract to insert $220,000 and signed it. The affidavit says that the purchaser, however, signed the original form of contract which showed a price of $215,000. The evidence which M r McDermott has given is to the effect that the true price agreed was $220,000 and that $215,000 was not the price. He complains, in effect, that if the sale goes through at $215,000, the estate would be $5000 worse off.

~t is not possible for me to resolve this question on the evidence available. It appears that the matter has been handled in the trustee's office by a Mr Woodyatt, who has not made an affidavit, nor has there been any oral evidence on behalf of the trustee. However, the order which is sought is not one which depends upon resolving that dispute, that is, whether or not the trustee or M r McDenott is right about the question just discussed. If the trustee sells property which was agreed to be purchased for $220,000 for a lesser sum, he may incur some liability, but it seems to me plain that the court should not hold up the administration of the estate until this dispute is resolved, if it ever is going to be. The trustee says that he wants to sell to the Ways for the price which they are prepared to pay, which he says is $215,000. Mr McDermott, on the other hand, says that that is $5000 less than they agreed to pay.

I think that the primary matter to be kept in mind, with all due respect to Mr McDermott (who I feel has come here

bankrupt and that control of their property, which is	quite honestly and bona fide) is that he and Kim McDermott are
principally this house, has passed to the trustee. Unless the trustee is doing something which is obviously unreasonable, generally speaking, the court will give effect to the method of disposition of the property of the bankrupts which the trustee thinks to be correct. That is, the court does not ordinarily interfere with what, on the face of it, are not unreasonable decisions of the trustee and leaves it to him to proceed as he thinks best.
Here, the trustee's point is that Mr and Mrs McDermott are in the house; he wants to sell it to the Ways and he cannot give possession to the Ways unless the McDernotts leave. Mr McDermott does not dispute the trustee's right to sell the house, but he is hanging on there because he thinks that if he does, then it might force the price up. He does not put it that way, but that seems to be what it amounts to. On the other hand, if he does not give up possesion, then the sale may fall through, and in the current climate it is not absolutely certain, I would have thought, that the same price would be available again in a later sale.
It seems to me that the proper way in which to exercise discretion is to make the order sought, but I hasten to add that in making it, I am not by any means blaming Mr McDermott or finding that he is not telling what he believes
to be the honest truth.
Mr Black, who has appeared for Mr and Mrs fi1cDermott today, has informed me that if it is proposed to make an order, Sunday would be a convenient moving day, and that does not seem to be opposed by Mr Redmond, for the trustee. I will therefore order that on or before Sunday, 27 May 1990, the respondents, Gerard Michael McDermott and Kim Maree McDermott vacate and give up possession of the residence at 13 Longboat

i d

i	Place, Bayview Anchorage, and on or before that day, 27 May	1	r
1990, that they deliver the keys of the premises to the	j
L
trustee's office or trustee's representative.

I certify that this and the three preceding pages are a true copy of the reasons for judgment herein of Mr Justice Pincus.