Mellos in his capacity as trustee of the bankrupt estate of Rui Yu v Jin Yu

[2022] NSWSC 169

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mellos in his capacity as trustee of the bankrupt estate of Rui Yu v Jin Yu [2022] NSWSC 169

Hearing dates:

25 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence filed 1 February 2022 struck out.

2. Judgment for the First Plaintiff for possession of the property comprised in folio identifier 43/SP85814 being the property situated at and known as 43/42-48 Waverly Street, Bondi Junction NSW 2022.

3. Leave to the plaintiff to issue a writ of possession such writ not to be executed before 14 April 2022.

4. Costs reserved.

5. Stand over the balance of the proceeding before Davies J at 2:30pm on 25 March 2022.

6. Parties granted liberty to apply on 2 days’ notice to Associate.

Catchwords:

LAND LAW – possession of land – where registered proprietor is bankrupt – right of trustee to obtain possession

Legislation Cited:

Bankruptcy Act 1966 (Cth) s 58

Real Property Act 1900 (NSW) s 90

Uniform Civil Procedure Rules 2005 (NSW) r 12.1

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Nick Mellos in his capacity as trustee of the bankrupt estate of Rui Yu (Plaintiff)
Jin Yu (Defendant)

Representation:

Counsel:
P Saroukas (Plaintiff)
In person (Defendant)

Solicitors:
Chambers Russell Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s):

2021/83612

Publication restriction:

Nil

Judgment

1. Prior to 31 March 2020 a person named Rui Yu was the registered proprietor of a property comprised in folio identifier 43/SP85814, which is the property situated at and known as unit 43/42-48 Waverley Street, Bondi Junction. On 31 March 2020 the Federal Circuit Court of Australia made a sequestration order against Rui Yu, and the plaintiff, Nick Mellos, was appointed the sole trustee of the bankrupt estate of the bankrupt.

2. Pursuant to s 58 of the Bankruptcy Act1966 (Cth) unit 43 vested in the plaintiff, subject to a first registered mortgage to HSBC Bank. On 2 November 2020 the plaintiff was recorded as the registered proprietor of unit 43 pursuant to s 90 of the Real Property Act 1900 (NSW).

3. Unit 43 is occupied by a person named Jin Yu, also known as Eric Yu. An affidavit of Douglas O'Connor sworn 12 April 2021 attests to service on Mr Yu of the proceedings, together with a Notice to Occupier.

4. HSBC was named as the defendant in these proceedings for possession commenced by the filing of a statement of claim on 25 March 2021. I am satisfied from affidavits of Aqsa Nayab Tarik of 28 April 2021 that HSBC Bank has been duly served with these proceedings. There is no appearance by HSBC Bank.

5. On 8 December 2021 an amended statement of claim was filed. It named only Mr Yu as the defendant. No order has been made for the removal of HSBC as a defendant. Since HSBC had been served, such an order ought to have been sought to give HSBC an opportunity to make any costs application it may have wished to make. The effect of what occurred amounted to a discontinuance against HSBC without its consent: see r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW),

6. Mr Yu has filed a document entitled "Defence" on 1 February 2022. That document does not contain pleading in any ordinarily accepted sense of that term. Rather, it provides a history of the issues that resulted in the bankruptcy of Rui Yu and subsequently of Mr Yu, and makes statements about how arrangements are being made to bring money from the Peoples Republic of China to pay the debt to the owners corporation which led to the bankruptcy of the persons I have mentioned.

7. Mr Yu has appeared this morning and has made similar statements in relation to the issue with the Owner’s Corporation and the intention to pay off the debt. Since sequestration orders have been made against the owner of the property and against the occupier of the property, issues in relation to the payment of the debt which led to the bankruptcy are not matters for this Court, but for the Federal Magistrates Court, perhaps in relation to an application to annul the bankruptcy if appropriate circumstances are shown.

8. In all of those circumstances, the defence filed on 1 February 2022 does not disclose any defence to the claim by the trustee. I am also satisfied that there is no defence to the claim by the trustee who is now the registered proprietor of the land and is entitled to possession of the land, subject only to the rights of HSBC Bank, which are acknowledged by the trustee.

9. Accordingly, I make the following orders:

1. The defence filed 1 February 2022 is struck out.

2. Judgment for the plaintiff for possession of the property comprised in folio identifier 43/SP85814, being the property situated at and known as 43/42-48 Waverley Street, Bondi Junction NSW 2022.

10. Leave is given to the plaintiff to issue a writ of execution to enforce the order of the Court. Such writ is not to be executed prior to Thursday 14 April 2022.

11. I will adjourn the balance of the proceedings to 25 March 2022 at 2.30pm before me.

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Amendments

28 March 2022 - Correction of typographical error in para [1] of judgment.

Decision last updated: 28 March 2022