Official Trustee in Bankruptcy v Ebner

[2004] VSC 387

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5739 of 2004

OFFICIAL TRUSTEE IN BANKRUPTCY	Plaintiff
V
INGRID EBNER & MAXWELL WILLIAM EBNER	Defendants

---

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2004
DATE OF JUDGMENT:	30 August 2004
CASE MAY BE CITED AS:	Official Trustee in Bankruptcy v. Ebner and Ebner
MEDIUM NEUTRAL CITATION:	[2004] VSC 387

---

Official trustee – bankrupt – sale of property – further stay refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Clarke	Deacons
For the Defendants	Mr A. Herskope	Rigby Cooke
For the Court Appointed Receiver	Ms J. Armstrong

HIS HONOUR:

1. By summons on originating motion, both filed on 30 April 2004, the plaintiff, as trustee of the property of the second defendant, Mr Maxwell William Ebner, a bankrupt, sought Orders that property being situate at 6 Watts Parade, Mt. Eliza and registered in the name of the first defendant, Mrs Ingrid Ebner the wife of the second defendant be sold and the proceeds of the sale be distributed between the plaintiff and the first defendant, and consequential orders.  There is a long and tortuous history to the matter which I shall not here rehearse.  It is set out in the supporting affidavit to the initiating summons, that of Mr E.J. Marsh, Deputy Official Receiver, sworn 29 April 2004.  On 10 June 2004 Byrne J. made various Orders herein, including (paragraph 13) that the property be sold on or after 1 September 2004.

1. I have before me a summons filed today on behalf of Ms Ingrid Ebner and Mr Maxwell Ebner that para.7 of the Order of Byrne J. made on 10 June 2004 be further stayed until 14 September 2004, that is effectively 14 days herefrom, and that there be an Order for a mediation pursuant to Rule 50.07.

1. On 10 June 2004, Byrne J. by para.7 of his Order ordered:

"The defendants, whether by their servants, agents or otherwise, give up possession of the property and all improvements thereon to the Receiver appointed pursuant to these Orders, by 17 August 2004."

1. By para.9 of that Order Byrne J. ordered that the relevant Certificate of Title, Volume 9912 Folio 970, be delivered by the defendants to the receiver within 28 days.

1. Neither para.7 nor para.9 of the Order of Byrne J. of 10 June 2004 has been complied with by the defendants.  The receiver has applied for and obtained a title.  As to possession, on the day on which the Order would have finally come to fruition, and without prior notice, the defendants came before Osborn J. and sought a stay of 14 days of Order para.7.  Osborn J. granted that stay of 14 days on account of, it would appear to me, a very merciful reading of the Orders, in that there may have been an ambiguity - if one looked hard enough to find it - between para.22 which stated that paras.5, 6, 7 and 8 are stayed for 14 days, and para.7.  His Honour very fairly ensured the removal of any doubt about the matter.  No proceeding had been taken in the meantime by the defendants to seek to clarify whether there was an ambiguity, pursuant to liberty to apply granted by Byrne J. until the day of the fulfilment of the Order.  I am informed further by counsel that Osborn J. considered that there was no relevant prejudice in adjourning the matter from that date, as the sale could not have taken place before 1 September 2004.  Again, a merciful view, given that if these matters are adjourned time and again for 14 days there is a cumulative prejudice, including as Ms Armstrong has pointed out, in relation to the ultimate Order of the sale of the property, which pursuant to para.13 of Byrne J's Order was to be on or after 1 September 2004 – that is, tomorrow.

1. Again at the eleventh hour, the defendants have come before the Court seeking a further 14 days.  Mr Herskope for the defendants submits that they do not know what is alleged to be owing.  Yet in exhibit ABB8 to Mr A.B. Bloch's affidavit of 30 August 2004 is referred to a letter of 18 July 2001 in which the amount of $573,900.21 is specified as owing.  Mr Herskope submits that the defendants' legal practitioners cannot responsibly tender them legal advice.  Yet the financial and legal situation can be ascertained from the papers. 

1. I am entirely unpersuaded that a stay sought ought be granted.  I have been assisted by Mr Herskope's most comprehensive review of the factual material and by Mr Bloch's affidavit, which most helpfully exhibits to it the correspondence between the practitioners.  However, I am unsatisfied first that the defendants do not know where they stand and second, that they cannot be properly given legal advice.  On the contrary, it appears to me that this is an exercise in obfuscation by the defendants designed to yet again have the lawful rights of the plaintiff adjourned over.

1. I am unpersuaded there is any substance or merit in the reasons for the summons and accordingly, I am unpersuaded to adjourn the matter over for 14 days as is sought.

1. Next, I am entirely unpersuaded to order a mediation pursuant to Rule 50.07 again because I consider this exercise is one of obfuscation and avoidance. Accordingly, I will not order a mediation.

1. Thus I dismiss the summons and refuse the two reliefs which are sought in it.  The time has come for no further adjournments.

[AFTER DISCUSSION]

1. I am satisfied the costs order should be made in favour of the plaintiff.  The conduct of the two defendants has been to fail to comply with court orders in a number of respects and to leave things until the last minute and I am satisfied that the costs of this proceeding ought to be paid by the defendants of the plaintiff.  I so order.  I fix the costs in the sum of $3,000.

1. Any further documents that need to be signed can be provided to my Associate.

Sine die.