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Official Receiver v Maher

Official Receiver v Maher

Case [2010] FMCA 857 3 November 2010

Bankruptcy Act 1966 (Cth)

Property Law Act 1969 (WA)

Vacant Possession

Sale of Land

Trustee in Bankruptcy

Bankruptcy Law

Property Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v MAHER

[2010] FMCA 857

BANKRUPTCY – Application for the sale of property – power to make orders.

Bankruptcy Act 1966 (Cth), ss.19, 30, 77(1)(e) and (g)
Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(2)(b)(iii), 13.03B(2)(e), 13.07(2)
Property Law Act 1969 (WA), s.126(1)

Bray v Bray (1926) 38 CLR 542; [1926] HCA 40
Cook v Schwarcz [2005] FMCA 1598
Cook v Tagamilitsky [2001] FMCA 117
Official Receiver v Fall (2008) 5 ABC(NS) 772; [2008] FMCA 489
Official Receiver v Tregaskis [2006] FMCA 1915
Pascoe v Hooper [2009] FMCA 520
Pattinson v McKinnon [2008] FCA 1624
Re Bilen; Ex parte Sistrom [1985] FCA 120

Applicant:

OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent:

GILBERT FRANCIS MAHER

File Number:

PEG 154 of 2010

Judgment of:

Lucev FM

Hearing date:

3 November 2010

Date of Last Submission:

3 November 2010

Delivered at:

Perth

Delivered on:

3 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr C. Donoghue

Solicitors for the Applicant:

Carles Solicitors

the Respondent:

No appearance

DECLARATION

The applicant and the respondent are the beneficial owners of the land comprised in Certificate of Title Volume 1478 Folio 682 and known as 82 Kurrajong Road, Safety Bay, Western Australia (“the Land”) as tenants in common in equal shares.

ORDERS

The Land be sold free from the 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 applicant is to decide whether the Land is to be sold by public auction or private treaty.
The Land be sold subject to the latest version of the Law Society of Western Australia’s General Conditions for the Sale of Land.
The applicant is to decide whether or not to set a reserve price for any auction of the Land and, if set, at what price.
The applicant have the conduct of the sale and be authorised to instruct an agent and auctioneer for that purpose.
The applicant be empowered to sign any contract of sale, Transfer of Land and any other conveyancing documents on behalf of the respondent to give effect to the sale in the event that the respondent fails or refuses to sign these documents within such time as required by the applicant’s solicitors.
The respondent 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 Land including providing access to buildings on the Land for the purposes of valuation and viewing by potential purchasers.
The respondent has liberty to bid at the sale.
The net proceeds of the sale of the Land, after payment of what shall be due to any encumbrancer or encumbrancers according to their priorities and of all other proper costs, charges and expenses of the sale, be paid to the applicant and respondent in equal shares subject to the adjustment in order 13 below.
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 Official Receiver v Maher

Details

AGLC: Official Receiver v Maher [2010] FMCA 857
Case: [2010] FMCA 857
Decision Date

CaseChat Overview and Summary

Official Receiver for and on behalf of the Official Trustee in Bankruptcy has applied to the Federal Magistrates Court of Australia for the sale of a property in Safety Bay, Western Australia, which is jointly owned with Gilbert Francis Maher. The application seeks orders for the sale of the property, including vacant possession, and the division of net proceeds between the parties. The Official Receiver acts on behalf of the Official Trustee in Bankruptcy to recover assets for the benefit of the bankrupt's creditors. The legal issues revolve around the Court's jurisdiction to order the sale of the property under the Bankruptcy Act 1966 (Cth) and the Property Law Act 1969 (WA), and the respondent's default in not opposing the application.

The Court found that it has the jurisdiction to order the sale of the property, as the applicant holds at least a one-half interest in the property and the respondent has not demonstrated that partition is a better option. The Court noted that the principles of Bray v Bray apply, where the Court will direct a sale of land where requested by a party with a one-half interest or more, and the applicant is entitled to orders as of right where the respondent has not discharged the onus of showing that partition is a better option. The Court also found that it is not limited by any restrictions found in s.126 of the Property Law Act.

The Court made orders in terms of the final orders sought by the applicant in the application, including the sale of the property free from encumbrances, the conduct of the sale by the applicant, and the division of net proceeds between the parties. The Court also ordered that the respondent provide vacant possession of the property and all keys to the applicant's solicitors. The Court further ordered that the mediation conference listed for 10:00am Friday 12 November 2010 be vacated and that the applicant's costs of the action against the respondent be fixed in the sum of $3,409.14 and be paid out of the respondent's share of the proceeds of sale of the Land.

In conclusion, the Court found in favour of the applicant and made orders for the sale of the property, the division of net proceeds, and the provision of vacant possession by the respondent. The Court's decision was based on the respondent's default, the evidence in support of the application, and the principles of Bray v Bray and the relevant legislation. The Court's orders were made in terms of the final orders sought by the applicant in the application.

Orders