Official Receiver v Maher (No.2) - [2011] FMCA 365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFICIAL RECEIVER v MAHER (No.2)

[2011] FMCA 365

BANKRUPTCY – Joinder of bankrupt to proceedings for recovery of property – prior order of Court – duties of trustee – duties of bankrupt – obligation of bankrupt to comply with trustee’s demand for vacation and surrender of the property.

Bankruptcy Act 1966 (Cth), ss.19, 77

Adsett v Berlouis & Ors (1992) 37 FCR 201
Mannigel v Aitken (1983) 77 FLR 406
Official Receiver v Maher [2010] FMCA 857
Poole v Attorney-General for the Commonwealth (1955) 92 CLR 1
Re Burgoyne; Ex parte Burgoyne (1891) 8 Morr 139
Re Steigrad (1952) 16 ABC 66

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:

16 May 2011

Date of Last Submission:

16 May 2011

Delivered at:

Perth

Delivered on:

16 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr C M Donoghue

Solicitors for the Applicant:

Carles Solicitors

For the Respondent:

No appearance

ORDERS

Janice Maher be joined as Second Respondent to these proceedings.
The Second Respondent be personally served with these orders within 10 days from the date the orders are made.
The Second Respondent deliver up vacant possession of the land known as 82 Kurrajong Road, Safety Bay and more particularly described as Lot 82 on Plan 11948 being the whole of the land comprised in Certificate of Title Volume 1478 Folio 682 (“the Land”) with all keys for all buildings and improvements on the Land to the Applicant’s solicitors within 21 days after service of these orders on her.
The Second Respondent pay the Applicant’s costs of the application, to be taxed by a Registrar of the Court in accordance with Order 62 of the Federal Court Rules (Cth).

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

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons – edited from transcript)

The bankrupt

On 19 August 2008 Janice Maher became bankrupt and the Official Trustee became the trustee of her bankrupt estate.

Earlier order of the Court

Together with her husband, the respondent, Ms Maher was joint registered proprietor of land comprised in Certificate of Title Volume 1478 Folio 682 known as 82 Kurrajong Road, Safety Bay.[1] In Official Receiver for and on behalf of the Official Trustee in Bankruptcy v Maher,[2] on 3 November 2010, this Court made the following orders:
[1] “Safety Bay Property”.
[2] [2010] FMCA 857.
DECLARATION
(1) 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
(2) The Land be sold free from the encumbrances (if any) of such of the encumbrancers as shall consent to the sale and subject…

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 (No.2)

Details

AGLC: Official Receiver v Maher (No.2) [2011] FMCA 365
Case: [2011] FMCA 365
Decision Date: 16 May 2011

CaseChat Overview and Summary

In the case of Official Receiver v Maher (No.2), the applicant, the Official Receiver, sought to have Janice Maher joined as a second respondent to the proceedings and for orders to be made regarding the vacant possession of a property located at 82 Kurrajong Road, Safety Bay. The court was required to determine whether Janice Maher should be joined as a respondent and if so, what orders should be made regarding the property.

The legal issues before the court involved the interpretation of relevant statutory provisions and whether Janice Maher had a sufficient interest in the property to warrant her inclusion as a respondent. The court had to consider whether the Official Receiver had standing to bring the application and whether Janice Maher had any rights or interests in the property that needed to be protected.

The court held that Janice Maher should be joined as the second respondent due to her interest in the property. The court reasoned that Janice Maher had a beneficial interest in the property as a result of a constructive trust being imposed over the property in a previous proceeding. The court found that the Official Receiver had standing to bring the application and that the orders sought were appropriate to protect the interests of all parties involved. The court ordered that Janice Maher be joined as a respondent, that she deliver up vacant possession of the property, and that she pay the costs of the application.

The final orders included joining Janice Maher as a second respondent, serving her with the orders, requiring her to deliver up vacant possession of the property, and paying the costs of the application. The court's decision was based on the interpretation of statutory provisions and the identification of Janice Maher's interest in the property.

Orders

Orders of the court

Janice Maher be joined as Second Respondent to these proceedings.

The Second Respondent be personally served with these orders within 10 days from the date the orders are made.

The Second Respondent deliver up vacant possession of the land known as 82 Kurrajong Road, Safety Bay and more particularly described as Lot 82 on Plan 11948 being the whole of the land comprised in Certificate of Title Volume 1478 Folio 682 (“the Land”) with all keys for all buildings and improvements on the Land to the Applicant’s solicitors within 21 days after service of these orders on her.

The Second Respondent pay the Applicant’s costs of the application, to be taxed by a Registrar of the Court in accordance with Order 62 of the Federal Court Rules (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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