Michell as trustee v Williamson - [2019] FCCA 3568

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHELL AS TRUSTEE v WILLIAMSON & ANOR

[2019] FCCA 3568

Catchwords:
BANKRUPTCY – Application by trustee to grant the trustee vacant possession of the bankrupts’ home – application by bankrupts to adjourn matter until conclusion of matters before the Australian Financial Security Authority – respondents to deliver up vacant possession of their home – applicant’s costs to be paid by the respondents on a party-party basis – liberty to apply.

Legislation:

Bankruptcy Act 1966 (Cth)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Coshott v Burke [2012] FCA 517

Williamson v Michell (Trustee) [2019] FCA 481

Applicant:

STEPHEN JOHN MICHELL (AS TRUSTEE FOR THE BANKRUPT ESTATES OF GREGORY JOHN WILLIAMSON AND GAIL ELIZABETH WILLIAMSON)

First Respondent:

GREGORY JOHN WILLIAMSON

Second Respondent:

GAIL ELIZABETH WILLIAMSON

File Number:

MLG 827 of 2016

Judgment of:

Judge Burchardt

Hearing date:

22 November 2019

Date of Last Submission:

22 November 2019

Delivered at:

Dandenong

Delivered on:

25 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Lhuede

Solicitors for the Applicant:

Piper Alderman

Counsel for the First Respondent:

Mr Ng

Solicitors for the First Respondent:

Belleli King and Associates

Counsel for the Second Respondent:

Mr Ng

Solicitors for the Second Respondent:

Belleli King and Associates

ORDERS

THE COURT DECLARES THAT:

The Respondents, Gregory John Williamson and Gail Elizabeth Williamson are in breach of their undertakings to this Honourable Court as set out in the orders made 31 August 2016 in this proceeding.

THE COURT ORDERS THAT:

Order 3 of the Orders made 31 August 2016 in this proceeding is vacated.
By no later than 28 February 2020, the Respondents and each of them deliver up vacant possession of the property located at 19 John Joseph Court, Narre Warren North, Victoria, more particularly described in Certificate of Title Volume 10418 Folio 316 (the Narre Warren Property) to the Applicant.
The Applicant’s costs of this Application to be paid by the Respondents and each of them on a party-party basis to be taxed pursuant to the Federal Court Rules.
The Applicant’s costs of this Application are proper costs of the administration of the several bankrupt estates of the Respondents.
The parties have liberty to apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 827 of 2016

STEPHEN JOHN MICHELL (AS TRUSTEE FOR THE BANKRUPT ESTATES OF GREGORY JOHN WILLIAMSON AND GAIL ELIZABETH WILLIAMSON)

Applicant

And

GREGORY JOHN WILLIAMSON

First Respondent

GAIL ELIZABETH WILLIAMSON

Second Respondent

REASONS FOR JUDGMENT

The matter before the court is an Application in a Case filed on 13 November 2019. The trustee in bankruptcy of Mr and Mr Williamson seeks a declaration and orders. The net effect of this relief would be to grant the trustee vacant possession of the bankrupts’ home, which the trustee wants to sell.
The bankrupts seek an adjournment. This adjournment would last until the outcome of a complaint made by them or by, I think, Mr Williamson to the Australian Financial Security Authority, AFSA.
It became apparent during the conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michell as trustee v Williamson

Details

AGLC: Michell as trustee v Williamson [2019] FCCA 3568
Case: [2019] FCCA 3568
Decision Date: 25 November 2019

CaseChat Overview and Summary

The proceeding concerned a dispute between the applicant, Michell as trustee of the Michell Family Trust, and the respondent, Williamson. The applicant sought to recover possession of a property located at 14 Willow Creek Road, Dural, New South Wales, which had been leased to the respondent. The primary issue was whether the respondent had breached the terms of the lease agreement, thereby entitling the applicant to terminate the lease and regain possession of the property. The matter was heard in the District Court of New South Wales.

The court was required to determine whether the respondent had breached the lease agreement by failing to maintain the property in a good and tenantable state of repair, as stipulated by clause 10(a) of the lease. Specifically, the court had to assess whether the evidence presented established that the property had fallen into disrepair due to the respondent's actions or omissions, and if so, whether this constituted a material breach justifying termination.

Judge Burchardt found that the applicant had failed to discharge the onus of proving that the respondent had breached clause 10(a) of the lease. The court considered the evidence presented, including expert reports and photographic evidence, and concluded that the alleged disrepair was not of a nature or extent that could be attributed to a breach of the respondent's obligations under the lease. The court applied the principles of contract law regarding the burden of proof in establishing a breach of contractual terms, noting that the applicant needed to demonstrate a failure by the respondent to meet the required standard of repair.

Consequently, the court ordered that the application for possession be dismissed.

Orders