Mellos in his capacity as trustee of the bankrupt estate of Rui Yu v Jin Yu (No 2)

[2022] NSWSC 341

Supreme Court

New South Wales

Medium Neutral Citation:

Mellos in his capacity as trustee of the bankrupt estate of Rui Yu v Jin Yu (No 2) [2022] NSWSC 341

Hearing dates:

25 March 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence filed 1 February 2022 struck out insofar as it relates to Unit 42.

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

3. Leave to the Second and Third plaintiffs to issue a writ of possession such writ not to be executed before 29 April 2022.

4. Plaintiff granted liberty to apply on 2 days’ notice to Associate.

Catchwords:

LAND LAW - possession of land – where estate of registered proprietor sequestrated – claim for possession by bankruptcy trustee – where bankrupt has no standing to appear – where no defence demonstrated

Legislation Cited:

Nil

Cases Cited:

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

National Australia Bank Limited v Strik [2009] NSWSC 184 [2009] NSWSC 184

Scott v Wondal [2015] NSWSC 1577

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, Jin Yu and Peihua Pan were the registered proprietors as joint tenants of the property comprised in Folio Identifier 42/SP85814, which is the property situated at and known as 42/42 48 Waverley St, Bondi Junction. On 3 August 2021, the Federal Circuit Court of Australia made a sequestration order against Jin Yu, and Mr Nick Mellos was appointed the sole trustee of Jin Yu's bankrupt estate. On 24 August 2021, the Federal Circuit Court of Australia made a sequestration order against Peihua Pan, and Mr Nick Mellos was appointed the sole trustee of Ms Pan's bankrupt estate.

2. As a result of the bankruptcies, the shares of the bankrupts in Unit 42 vested in Mr Mellos, described as the second and third plaintiffs because of his different capacities. Jin Yu has continued to reside in Unit 42. Mr Mellos now seeks possession of Unit 42.

3. On 25 February 2022, I made orders in relation to another property being Unit 43 in the same block of apartments. Unit 43 had previously been owned by another person, Rui Yu. In similar circumstances, the Federal Circuit Court of Australia made a sequestration order against Rui Yu. Jin Yu was also the occupier of Unit 43: Mellos in his capacity as trustee of the bankrupt estate of Rui Yu v Jin Yu [2022] NSWSC 169.

4. Jin Yu had filed a defence on 1 February 2022 to the amended statement of claim. I struck that defence out, at least to the extent that it purported to be a defence to the claim for possession of Unit 43. Jin Yu has again appeared today and seeks further time to obtain money with a view, it would seem, to having his bankruptcy annulled and paying out the petitioning creditor. The defence filed on 1 February 2022 appears to have some limited relevance to Unit 42 also because, if the money Jin Yu refers to is forthcoming and the bankruptcies are annulled, Jin Yu would be entitled to regain ownership of Unit 42.

5. The evidence discloses that since bankruptcy proceedings were taken in the Federal Circuit Court in 2021, Jin Yu sought a number of adjournments to give time for a transfer of funds from China to avoid his estate being sequestrated. Subsequently, in this Court adjournments have been sought to enable the funds to be transferred from China. No such funds have been forthcoming. Even if such funds were obtained by him, that would not provide an answer to the claim for possession. It would be necessary for his bankruptcy to be annulled.

6. By reason of the fact that Mr Jin Yu is bankrupt, he does not have any right to appear to defend the present proceedings in any event: National Australia Bank Limited v Strik [2009] NSWSC 184 [2009] NSWSC 184; Scott v Wondal [2015] NSWSC 1577. Quite apart from that, the defence filed on 1 February 2022 does not disclose any defence to the amended statement of claim.

7. I am satisfied from an affidavit of service of Martin Folkes sworn 8 March 2022 that Jin Yu was served with a notice to occupier and supporting documents, including the amended statement of claim and the affidavits filed in these proceedings on behalf of Mr Mellos on 1 March 2022.

8. In those circumstances, I make the following orders:

1. To the extent that the defence filed 1 February 2022 is put forward as a defence to the claim for possession of Unit 42, it is struck out.

2. Judgment for possession for the second and third plaintiffs for the property comprised in Folio Identifier 42/SP85814 being the property situated at and known as 42/42 48 Waverley St, Bondi Junction.

3. The second and third plaintiffs have leave to issue a writ of possession to enforce the order of the court, such writ not to be executed before 29 April 2022.

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Decision last updated: 28 March 2022