Michell (Trustee), in the matter of McKim (Bankrupt) v McKim

[2024] FedCFamC2G 1271

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Michell (Trustee), in the matter of McKim (Bankrupt) v McKim [2024] FedCFamC2G 1271   

File number(s):	BRG 490 of 2022
Judgment of:	JUDGE EGAN
Date of judgment:	25 November 2024
Catchwords:	CONSUMER LAW – where the applicant trustee sought delivery up to him of possession of a Range Rover motor vehicle – where injunctions ordered to maintain the status quo pending the hearing of competing claims – where orders made accordingly.
Division:	Division 2 General Federal Law
Number of paragraphs:	9
Date of hearing:	19 November 2024
Place:	Brisbane
Counsel for the Applicant:	Mr C. Thwaites of Counsel
Solicitor for the Applicant:	Celtic Legal
The Respondents:	The First Respondent on behalf of the Respondents

ORDERS

BRG 490 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

STEPHEN MICHELL IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF CRAIG JOHN MCKIM

Applicant

AND:

CRAIG JOHN MCKIM
First Respondent

MEGAN DOROTHY NAYLOR
Second Respondent

RAFAEL CESAN (and another named in the schedule)
Third Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	25 NOVEMBER 2024

UPON COUNSEL FOR THE APPLICANT GIVING THE USUAL UNDERTAKING AS TO DAMAGES.

THE COURT ORDERS BY CONSENT THAT UNTIL FURTHER OR EARLIER ORDER:

1.The first respondent, by himself, his servants and agents, be restrained from in any way further encumbering, disposing of, selling, transferring possession of, or otherwise losing his personal control over the Range Rover motor vehicle registered in his name bearing the Queensland registration number 126 HW8.

AND IT IS FURTHER ORDERED THAT:

2.The applicant have leave to file and serve an amended interlocutory application for declaratory and injunctive relief against the respondents as so advised.

3.One Rafael Cesan of 641 Old Northern Road, Dural in the State of New South Wales, be joined as the third respondent to the proceeding.

4.The applicant forthwith cause to be emailed to Mr Cesan at the email address “[email protected]” all documents filed by all parties to date in the proceeding, together with a copy of this Order, such email to include a link or dropbox into which such documents can be electronically accessed by Mr Cesan.

5.RLC Productions Pty Ltd be joined as fourth respondent to the proceeding.

6.The applicant forthwith cause to be emailed to RLC Productions Pty Ltd at the email address “[email protected]” all documents filed by all parties to date in the proceeding, together with a copy of this Order, such email to include a link or dropbox into which such documents can be electronically accessed by RLC Productions Pty Ltd.

7.The matter be re-listed for further hearing today not before 12.00pm AEST.

8.Each party have liberty to apply, on the giving of two (2) days’ notice, each to the other.

9.The costs of and incidental to today’s hearing to date be reserved.

10.The first respondent remain in the precincts of the Court until further order.

Endorsement pursuant to Rule 25.07 of the Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth)

Should the First Respondent fail to comply with any order of the Court referred to above, the First Respondent may be liable to imprisonment, sequestration of property or punishment for contempt.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. These reasons relate to the making of orders after the first hearing before the Court today of an interlocutory application for the delivery up of a Range Rover Motor vehicle.

2. The second hearing before the Court today resulted in the making of further interlocutory orders for the time-tabling of steps to be taken before the hearing of any further or amended interlocutory application filed on behalf of any party to the proceeding.

3. In this matter, the question of title to, and beneficial ownership of, a blue/black Range Rover, registration number 126 HW8, has arisen, and is in dispute. 

4. The trustee seeks orders that the vehicle be transferred into his possession, on the basis that the vehicle is after-acquired property under and pursuant to the provisions of section 58(1)(b) of the Bankruptcy Act.

5. That question will require resolution by way of a hearing, which will require the hearing of the current application before the Court to be adjourned.  The trustee is concerned that, in the interim, some step or steps could be taken by parties related to the first respondent resulting in the disposal of, the lessening in value of, the further encumbering of, or the damaging of the vehicle for the purpose of frustrating the trustee's application for possession.

6. The status quo in terms of possession and control of the Range Rover ought to be maintained on an interlocutory basis. The respondent is present in Court, and has consented to the court making interlocutory orders restraining him and his servants or agents from in any way further encumbering or disposing of, or transferring beneficial or legal title to the subject vehicle.

7. The order for the joinder of the Third and Fourth Respondents as respondents to the proceeding was made at the Court’s own motion, such order being necessary so as to allow those parties to file affidavits and make submissions in the proceeding. That was so because they could each be adversely affected by any order which the Court may make in the applicant trustee’s favour due their each having respectively held security interests over an Audi motor vehicle and the subject Range Rover motor vehicle.

8. The third and fourth respondents were said by the first respondent to have held registered security interests over each of the Audi and the Range Rover where it was submitted on behalf of the applicant that at all relevant times the first respondent was the beneficial owner of such vehicles.

9. And it is so ordered.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       25 November 2024

SCHEDULE OF PARTIES

BRG 490 of 2022
Fourth Respondent	RLC PRODUCTIONS PTY LTD