Official Receiver v Maher and Anor (No.3)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v MAHER & ANOR (No.3) [2011] FMCA 603

BANKRUPTCY – Application for issuance of Property (Seizure and Delivery) Order – non-compliance with Court Orders – failure to deliver up vacant possession of premises.

Bankruptcy Act 1966 (Cth), s.77(1)(g)
Civil Judgments Enforcement Act 2004 (WA), s.59(1)
Federal Court Rules (Cth), O.37, r.7(2)
Federal Magistrates Act 1999 (Cth), s.78(2) and (3)
Rules of the Supreme Court 1971 (WA), O.46, r.2(1)(a)

Official Receiver for and on Behalf of the Official Trustee in Bankruptcy v Maher [2010] FMCA 857
Official Receiver for and on Behalf of the Official Trustee in Bankruptcy v Maher (No.2) [2011] FMCA 365

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

First Respondent: GILBERT FRANCIS MAHER

Second Respondent: JANICE MAHER

File Number: PEG 154 of 2010

Judgment of: Lucev FM

Hearing date: 3 August 2011

Date of Last Submission: 3 August 2011

Delivered at: Perth

Delivered on: 3 August 2011

REPRESENTATION

Counsel for the Applicant: Mr C Donoghue

Solicitors for the Applicant: Carles Solicitors

For the First Respondent: No appearance

For the Second Respondent: No appearance

ORDERS

1. A Property (Seizure and Deliver) Order (“PSDO”) be issued by a Registrar of this Court in terms of the draft PSDO Order filed in the Court Registry 24 June 2011, to give effect to Order 11 handed down by Federal Magistrate Lucev on 3 November 2010 and Order 3 handed down by Federal Magistrate Lucev on 16 May 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 154 of 2010

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

Applicant

And

GILBERT FRANCIS MAHER

First Respondent

JANICE MAHER

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons – edited from transcript)

Introduction

1. In this matter the applicant, the Official Receiver for and on behalf of the Official Trustee in Bankruptcy, seeks, as amended during the hearing today, a Property Seizure and Delivery Order[1] to be issued in terms of the draft PSDO filed in the Court Registry on 24 June 2011, to give effect to:

   a)Order 11 handed down by the Court as presently constituted on 3 November 2001; and

   b)Order 3 handed down by the Court as presently constituted on 16 May 2011.

   [1] “PSDO”.

2. The first respondent, Mr Maher, is the partner of the second respondent, Ms Maher. The second respondent is a bankrupt, and the Official Receiver acts for and on behalf of the Official Trustee of her bankrupt estate.

Background

1. The relevant facts are conveniently set out, in large part, in the affidavit of Jacqueline Riley, sworn 23 June 2011.[2] Ms Riley is a public servant employed in the office of the Official Receiver in Perth.  Relevantly, that affidavit says:

   2.On the 3 November 2010 the Official Trustee obtained orders (“the First Orders”) in these proceedings which were personally served on the First Respondent on 23 November 2010.

   3.The First Orders provided among other things that the First Respondent vacate the premises known as 82…