McLean v Quinane
[2022] FCA 62
•3 February 2022
FEDERAL COURT OF AUSTRALIA
McLean v Quinane [2022] FCA 62
File number: VID 454 of 2021 Judgment of: SNADEN J Date of judgment: 3 February 2022 Catchwords: BANKRUPTCY – application for orders for delivery of vacant possession of respondent’s property to the applicant – satisfaction that the applicant is entitled to vacant position – consent orders to that effect – orders made Legislation: Bankruptcy Act 1966 (Cth) s 73 Cases cited: Vince v Sopikiotis (No 2) [2012] FCA 1298 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 7 Date of hearing: 3 February 2022 Counsel for the Applicant: Mr B Petrie Solicitor for the Applicant: Rigby Cooke Lawyers Solicitor for the Respondent: Mr T Masterson of Masterson Legal ORDERS
VID 454 of 2021 BETWEEN: NEIL STEWART MCLEAN IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL QUINANE
Applicant
AND: PAUL QUINANE
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
3 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 30(1) of the Bankruptcy Act 1966 (Cth) (hereafter, the “Act”), the respondent is required to deliver up vacant possession of the property situated at 5 Morrisseys Road, Ondit, Victoria (more particularly described in certificate of title volume 5977, folio 319—hereafter, “the Property”) on or before 3 March 2022.
2.Pursuant to s 30(1) of the Act, in the event that the respondent fails to deliver up vacant possession in accordance with order 1 above, a warrant of possession shall issue forthwith.
3.Pursuant to s 30(1) of the Act:
(a)prior to 3 March 2022, the respondent is to remove from the Property all vehicles, rubbish and chattels the ownership in which has not vested in the applicant;
(b)in the event that the respondent fails to comply with sub-paragraph (a) above, the applicant may remove and dispose of any such property as the applicant sees fit after the date by which the respondent is required by the Court’s orders to deliver up vacant possession of the Property.
4.Pursuant to s 30(1) of the Act:
(a)prior to 3 March 2022, the respondent is to provide the applicant (or his agents) with reasonable access to the Property for the purposes of the Trustee effecting a sale of the Property, including any necessary repairs and maintenance, provided that the Trustee gives at least 24 hours’ notice (which may be by email or telephone) of requiring such access; and
(b)the respondent must execute all documents and do all things as is reasonably necessary to enable the applicant to effect a sale of the Property.
5.The applicant’s costs of this application shall be paid in priority from the bankrupt estate of the respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant is the trustee of the respondent’s bankrupt estate. By an originating application dated 13 August 2021, he moves the court for various species of relief, the combined effect of which is designed to deliver him vacant possession of a property belonging to the estate, which he intends to sell for the benefit of the estate’s creditors. The application is supported by an affidavit affirmed by the trustee on 10 August 2021, which was read without objection and to which was attached an unremarkable array of supporting documentation.
The property in question (hereafter, the “Property”) is situated at 5 Morrisseys Road, Ondit, Victoria. There is little, if anything, in the way of legal or factual controversy in the matter. The respondent does not challenge the applicant’s entitlement to vacant possession of the Property, nor this court’s jurisdiction to grant relief of that nature (the latter of which is neatly described in Vince v Sopikiotis (No 2) [2012] FCA 1298, [3]-[4] (Bromberg J)). The unchallenged affidavit material establishes, in any event, that the applicant is the trustee of the respondent’s bankrupt estate, that he is the registered proprietor of the Property, that the respondent continues to reside within the Property, that the applicant has demanded vacant possession of it, and that vacant possession has not been afforded.
The application was listed for hearing on Thursday, 3 February 2022. The parties were advised of that listing on Thursday, 21 October 2021. After the close of business on Wednesday, 2 February 2022, the respondent’s solicitor (presumably with the knowledge and consent of the applicant’s representatives) emailed my chambers and advised that the respondent would seek a stay on any orders made in order that:
(1)he (or somebody else acting for his benefit) could complete the sale of a different property, a contract for which has recently been executed and the proceeds of which are, apparently, intended to be directed to the satisfaction of his debts (or those of his bankrupt estate); and
(2)he could brief counsel “…for the purpose of seeking a Section 73 Proposal / Composition”.
No supporting affidavit material was provided but that is of no moment.
By the time that the hearing of the application commenced, the parties had agreed in large part upon appropriate orders that the court should make. The matter was adjourned briefly to allow them some further time to confer, after which their agreement graduated to the point of completion. Specifically, it was agreed that orders requiring the respondent to deliver up vacant possession of the Property (as well as other, ancillary orders) should be made, save that he should have until 3 March 2022 to comply. The application for declaratory relief was abandoned.
In the intervening period (that is, in the period leading up to 3 March 2022), it is envisaged that the respondent might take steps effectively to annul his bankruptcy, including potentially by means of a composition or arrangement entered into pursuant to s 73 of the Bankruptcy Act 1966 (Cth). In the event that that were to occur, it was agreed that ownership in the Property would re-vest in the respondent and that there would thereupon be no need for him to deliver vacant possession of it.
I am satisfied—indeed, there is no doubting—that the applicant is entitled to vacant possession of the Property (at least insofar as the bankruptcy endures) and that he should be granted relief directed to that end. The only issue requiring consideration is the form that that relief should assume. In light of the parties’ consent and agreed understanding as to what might occur between now and 3 March 2022, I am satisfied that the orders jointly proposed are appropriate and should, with only stylistic amendment, be made.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 3 February 2022
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