NICOLS AS TRUSTEE FOR THE BANKRUPT ESTATE OF CASSANITI

[2013] FCCA 1123

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICOLS AS TRUSTEE FOR THE BANKRUPT ESTATE OF CASSANITI [2013] FCCA 1123

Catchwords:
BANKRUPTCY – Application for order authorising trustee to remove personal property from land to enable sale of land.

Legislation:

Bankruptcy Act 1966, ss.30(1)(g)

Horne v Sekulovski & Anor [2009] FCA 1164

Applicant: STEVEN NICOLS AS TRUSTEE FOR THE BANKRUPT ESTATE OF PATRICIA GIULIANA CASSANITI

File Number: SYG 1554 of 2013

Judgment of: Judge Manousaridis

Hearing date: 16 August 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: Mr S Golledge

Solicitors for the Applicant: Hunt and Hunt

ORDERS

1. Pursuant to s.30(1)(g) of the Bankruptcy Act 1966 the applicant be permitted to remove all of the personal property, belongings, goods and rubbish (Personal Property) situated at 139 Fowler Road, Illawong in the State of New South Wales and sell or otherwise dispose of it with the costs of the same to be paid from the assets of the Bankrupt that have been vested in the applicant.

2. The applicant’s costs be paid from the assets of the Bankrupt that have been vested in the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1554 of 2013

STEVEN NICOLS AS TRUSTEE FOR THE BANKRUPT ESTATE OF PATRICIA GIULIANA CASSANITI

Applicant

REASONS FOR JUDGMENT

1. The applicant trustee seeks an order that he be permitted to remove and sell or otherwise dispose of all of the personal property, belongings, goods, and rubbish (personal property) situated on the property at 139 Fowler Road, Illawong (Land). No person resides on the Land.

2. The relevant background is set out in the affidavit of Corey Burke sworn on 8 July 2013. Mr Burke is an employee of the trustee.

3. The Land was owned by the bankrupt, but the trustee, after he was appointed trustee of the bankrupt’s estate, became the registered proprietor of the Land.

4. In around April 2013, the trustee resolved to take steps to sell the Land. On 10 April 2013, Mr Burke, inspected the Land and observed the presence, on the Land, of the personal property.

5. By letters dated 10 May 2013 to each of the bankrupt, the bankrupt’s former husband, Mr Sam Cassaniti, and Mr David Cassaniti, the trustee directed the bankrupt, Mr Sam Cassaniti, and Mr David Cassaniti to remove the personal property within fourteen days. The trustee wrote to Mr David Cassaniti because he was a director of a company in whose name a vehicle forming part of the personal property was formerly registered.

6. On 24 May 2013, Mr Burke received a letter from Mr David Cassaniti requesting an extension of time for the removal of the personal property. On 28 May 2013 Mr Burke had a telephone conversation with Mr David Cassaniti who explained to Mr Burke that the question of the ownership of the vehicle and building materials was “complicated”. Mr David Cassaniti said he needed to come and discuss this with Mr Burke and the trustee.

7. By letter dated 29 May 2013, the trustee granted Mr David Cassaniti an extension until 7 June 2013 to remove the personal property. The trustee has received no further communication from Mr David Cassaniti, and no communication from the bankrupt or from Mr Sam Cassaniti.

8. The trustee filed an application with this Court on 9 July 2013 and an amended application on 31 July 2013.

9. The amended application was served on the bankrupt by leaving an envelope addressed to the bankrupt at the letter box at 61/3 Ramu Close, Sylvania. This is the bankrupt’s address as notified by the bankrupt to the trustee by email sent on 12 November 2012, and is the address to which the trustee has been sending correspondence to the bankrupt.

10. In addition, the trustee arranged to publish on 31 July 2013 a notice in the Sydney Morning Herald of the trustee’s intention to apply to the Court on 12 August 2013 for an order that the trustee deal with the personal property, and inviting any person claiming an interest to file a notice of appearance and supporting documents. No person filed any notice of appearance with the Court, and no person appeared at the hearing claiming any interest in the personal property.

11. I am satisfied the trustee has given sufficient notice to the bankrupt and to any other person who may wish to claim an interest in the personal property. I note that immediately before the application was heard, I heard an application by Reliance Financial Services (NSW) Pty Limited to be joined as a party to the application. That application, which was dismissed, was supported by an affidavit sworn by Mr David Cassaniti. I am satisfied Mr David Cassaniti had actual notice of the application and of the orders the trustee was seeking by that application.

12. I next turn to whether the Court has power to grant the relief sought by the trustee. In my opinion, such power is conferred by s.30(1)(g) of the Bankruptcy Act1966. Tracey J in Horne v Sekulovski & Anor [2009] FCA 1164 held the Court had power under s.30(1)(g) to order the respondents, one of which was bankrupt, to vacate a property, and also to empower the trustee to remove all personal property from the property if the respondents failed to remove the personal property.

13. In my opinion, the trustee should be granted the relief he seeks in paragraphs 2 and 3 of the amended application. For the trustee to be in the position to sell the Land, it is necessary the Land be placed in such condition that it may be attractive to a potential purchaser.

14. Accordingly, I propose to make orders substantially in terms of the second and third orders sought in the amended application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 August 2013