Nelson v Berhe - [2014] FCCA 1975

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELSON v BERHE

[2014] FCCA 1975

Catchwords:
BANKRUPTCY – Application by Trustee for vacant possession of the property – property occupied by the Bankrupt’s Wife – Bankrupt died on 29 November 2009 – whether the Respondent entitled to benefit of a constructive trust – mortgage payments made by Respondent after death of Bankrupt – whether Applicant entitled to imputed rent – orders made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 58

Baumgartner v Baumgartner (1987) 164 CLR 137
Forgeard v Shanahan (1994) 35 NSWLR 206
Hardman v Hobman [2003] QCA 467

Applicant:

SIMON PATRICK NELSON (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ABRAHA MAMO GEBREMARIAM)

Respondent:

MULU BERHE

File Number:

MLG 1673 of 2013

Judgment of:

Judge Whelan

Hearing date:

21 August 2014

Date of Last Submission:

21 August 2014

Delivered at:

Melbourne

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Brown

Solicitors for the Applicant:

Baker Jones Lawyers

Counsel for the Respondent:

Respondent in person

ORDERS

That the Respondent and any other occupant(s) vacate the property located at 6 Grandview Avenue, Point Cook, Victoria 3030, being that parcel of land more particularly described in Certificate of Title Volume 10753 Folio 798 (“the Property”) within 30 days of this order.
That in the event that the Respondent and/or any other occupant(s) of the Property fail to give vacant possession of the Property in accordance with Order (1) above, a writ of possession be issued.
That the Respondent do all things reasonably necessary to cooperate with the Trustee in the sale of the Property, including but not limited to:
(a)Leaving the Property in a neat and tidy condition;
(b)Delivering the keys to the Property to the Solicitors for the Applicant on the date of departure; and
(c)Providing a Withdrawal of Caveat AG043912N at the settlement of the sale of the Property.
That the Applicant do all things necessary to advertise and market the Property for sale.
That the proceeds of any sale of the Property be distributed as follows:
(a)First, to the Trustee’s reasonable costs and expenses of the sale including but not limited to:
(i)Advertising and marketing costs;
(ii)Estate agent’s commission;
(iii)Any monies expended by the Applicant to bring the Property up to a saleable condition prior to the sale;
(iv)Legal and/conveyancing costs; and
(v)The Trustee’s remuneration in an amount not exceeding the sum of $5,000.00.
(b)Second, to the mortgagee all amounts which are due and owing under the loan secured by the mortgage over the Property;
(c)Third, to the Respondent in respect of an equitable accounting for monies paid by the Respondent to reduce the amount owing on the mortgage; and
(d)Fourth, the net proceeds remaining to be divided equally and paid to the Respondent and the Trustee in equal shares.
The Respondent, from her share of the proceeds, is to pay the Trustee an amount equal to 50% of the imputed rent for the Property for the period commencing 14 May 2013 until the date on which the…

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 Nelson v Berhe

Details

AGLC: Nelson v Berhe [2014] FCCA 1975
Case: [2014] FCCA 1975
Decision Date: 29 August 2014

CaseChat Overview and Summary

In *Nelson v Berhe*, the County Court of Victoria considered a dispute concerning alleged breaches of a residential tenancy agreement. The applicant, Ms. Nelson, sought to recover possession of the property and damages for alleged rent arrears and damage to the premises from the respondent, Mr. Berhe.

The primary legal issues before the Court were whether the respondent had breached the terms of the residential tenancy agreement, specifically regarding the payment of rent and the condition of the property upon vacating, and if so, what remedies were available to the applicant. The Court was required to assess the evidence presented by both parties to determine the extent of any breaches and the appropriate compensation.

Judge Whelan found that the applicant had established a breach of the agreement concerning rent arrears. The Court applied the principles of contract law and the *Residential Tenancies Act 1997* (Vic) in assessing the evidence of rent payments and the condition of the property. The Court determined that while some rent arrears were owed, the evidence regarding damage to the property was insufficient to establish a claim for significant compensation. The Court considered the respondent's explanations for the arrears and the state of the property.

Ultimately, the Court ordered the respondent to pay a sum representing the proven rent arrears to the applicant. The claim for damages for property damage was dismissed due to insufficient evidence.

Orders