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Official Receiver v Fall

Official Receiver v Fall

Case [2008] FMCA 489 14 April 2008

Bankruptcy Act 1966 (Cth)

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v FALL & ANOR

[2008] FMCA 489

BANKRUPTCY – Application for sale of property and to vacate land – power to make orders.

Bankruptcy Act 1966 (Cth), ss.30, 58(1)(b) and (6), 77(1)(e) & (g)
Property Law Act 1969 (WA), s.126(1)
Federal Magistrates Act 1999 (Cth), s.18

Bray v Bray (1926) 38 CLR 542
Cook v Schwarz [2005] FMCA 1598
Cook v Tagamilitsky [2001] FMCA 117
Official Receiver v Tregaskis & Anor [2006] FMCA 1915
Re Billen; ex parte Sistron [1985] FCA 141

Applicant:

OFFICIAL RECEIVER FOR AND ON BEHALF OF OFFICIAL TRUSTEE IN BANKRUPTCY

THE TRUSTEE OF THE PROPERTY OF ALAN LESLIE ROBINS, A BANKRUPT

First Respondent:

LEE HEATHER FALL

Second Respondent:

ALAN LESLIE ROBINS

File Number:

PEG 224 of 2007

Judgment of:

Lucev FM

Hearing date:

14 April 2008

Date of Last Submission:

14 April 2008

Delivered at:

Perth

Delivered on:

14 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr C. M Donoghue

Solicitors for the Applicant:

Carles Solicitors

Counsel for the First Respondent:

No Appearance

Solicitors for the First Respondent:

No Appearance

Counsel for the Second Respondent:

Mr R. J. Butcher

Solicitors for the Second Respondent:

Butcher Paull & Calder

ORDERS AND DECLARATIONS:

A declaration that the Applicant and the First Respondent are the beneficial owners of the land described as Lot 329 on Plan 13451 being the whole of the land comprised in Certificate of Title Volume 1586 Folio 155 and known as 12 Osprey Way, Thornlie, Western Australia (“the Thornlie land”) as tenants in common in equal shares.
The Thornlie land be sold free from encumbrances (if any) of such of the encumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent.
The Thornlie land be sold subject to the Law Society of Western Australia’s General Conditions for the Sale of Land.
The Applicant have the sole conduct of the sale of the Thornlie land and be authorised to instruct an agent and/or auctioneer for that purpose.
The Applicant is to decide whether the Thornlie land is to be sold by public auction or by private treaty.
The Applicant is to decide whether or not to set a reserve price for any auction of the Thornlie land and, if set, at what price.
The Applicant be empowered to sign any contract of sale, discharge of mortgage authority, Transfer of Land and any other documents, on behalf of the First Respondent necessary to give effect to the sale in the event that the First Respondent fails or refuses to sign such documents within such time as required by the Applicant’s solicitors.
The First and Second Respondents do all such things as may be reasonably required by the Applicant, its selling agent or solicitors for the purpose of achieving a sale of the Thornlie land including providing access to buildings on the Thornlie land for the purposes of valuation and viewing by potential purchasers.
The First and Second Respondents have…

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 Official Receiver v Fall

Details

AGLC: Official Receiver v Fall [2008] FMCA 489
Case: [2008] FMCA 489
Decision Date: 14 April 2008

CaseChat Overview and Summary

This matter concerns an application for the sale of a property and orders for the respondents to vacate land, brought by the Official Receiver on behalf of the Official Trustee in Bankruptcy. The first respondent, Lee Heather Fall, and the second respondent, Alan Leslie Robins, were the registered proprietors of land in Thornlie, Western Australia. The Official Trustee sought to sell the land to realise the assets of the bankrupt estate of the second respondent for the benefit of his creditors. The first respondent did not appear at the hearing of the application, and the second respondent sought an adjournment to allow him to obtain finance to either pay out the bankruptcy or purchase the Official Trustee’s equity in the property. The Court dismissed the adjournment application and indicated that it would be prepared to stay any orders it might make for a sufficient period to allow the second respondent to make any necessary arrangements to finance either the payout of his bankruptcy or the purchase of the Official Trustee’s equity in the property. The Official Trustee provided the Court with a draft order which it said would give effect to any such determination, if it was made by the Court. The Court found that it had jurisdiction to make the orders sought by the Official Trustee under sections 30 and 77 of the Bankruptcy Act. The Court also found that it had jurisdiction to make orders for sale under section 126 of the Property Law Act 1969 (WA), and that it was not limited by any restrictions found in that section. The Court found that the Official Trustee was entitled to vacant possession of the Thornlie land, and to have sole conduct of the sale of the Thornlie land in order to realise the assets of the bankrupt estate. The Court found that the first and second respondents had failed to do all such acts and things in relation to the realisation of the land and to aid the Official Trustee in the administration of the bankrupt estate, and that their conduct had caused significant delay and increased costs in the administration of the bankrupt estate to the prejudice of the second respondent’s creditors. The Court found that there was nothing before it that ought to prevent it from making the orders sought in the application, save for the plea from the second respondent that the Court ought to stay the operation of the orders for a period to allow him one final chance to obtain finance to either pay out the bankruptcy or purchase the Official Trustee’s equity in the property. The Court found that it was prepared to give the second respondent one final chance to obtain finance for the purposes set out above, but that it ought be under no illusion that this was anything other than a final chance, and that it would be necessary to establish exceptional circumstances to further delay the sale of the Thornlie land. The Court made orders in terms of proposed orders 1–16 in the Official Trustee’s Minute of Proposed Orders, with the minor amendments referred to in making orders on the day of hearing, and with a further order providing that the orders are to be stayed for a period of 60 days and to be vacated if the bankruptcy is annulled in that period, and for the cost consequences flowing therefrom. The Court certified that the preceding twenty-one (21) paragraphs were a true copy of the reasons for judgment of Lucev FM.

Orders