Official Trustee in Bankruptcy v Waa

Official Trustee In Bankruptcy v Waa
[2016] NTSC 69

PARTIES:OFFICIAL TRUSTEE IN BANKRUPTCY

v

HAERUSIAH WAA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:68 of 2016 (21635799)

DELIVERED:  15 December 2016

HEARING DATES:  27 October 2016

JUDGMENT OF:  MASTER LUPPINO

CATCHWORDS:

Jurisdiction of Courts – Whether the proposed proceedings alter the interest vested in Official Trustee by s 58 Bankruptcy Act – Whether this Court has jurisdiction to determine the Defendant’s proposed claim.

Practice and Procedure – Order to join a party – Considerations for the making of an order – Order to continue matter commenced by Originating Motion as if commenced by Writ and consequential orders – Considerations for the making of an order – Application for substituted service – Requirements for the making of an order for substituted service.

De Facto Relationships – Adjustment of property interests – Whether declaration of property interests is required as a preliminary to an adjustment of property interests – Extension of time to make application – Desirability of hearing all the evidence before deciding whether to grant the extension.

Bankruptcy – Whether proceedings alter the interest fixed by s 58 Bankruptcy Act.

Bankruptcy Act (Cth), ss 27, 58

De Facto Relationships Act ss 12, 13, 14

Law of Property Act s 40.

Supreme Court Rules, rr 4.04, 4.05, 4.06, 4.07, 6.09, 9.02, 9.06. 13.02.

O’Neil v Acott (1988) 59 NTR 1;

Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311;

Payne v Young (1980) 145 CLR 609;

Australian Consumer And Competition Commission v Launceston Superstore Pty Ltd [2013] FCA 297;
Knight v Beyond Properties Pty Ltd (No 2) (2006) FCA 192;
CBI Contractors Pty Ltd v Abbott (No 2) [2009] FCA 1129.

REPRESENTATION:

Counsel:

Plaintiff:Mr George

Defendant:Ms Dargan

Solicitors:

Plaintiff:De Silva Hebron

Defendant:Withnalls Lawyers

Judgment category classification:    B

Judgment ID Number:  Lup1606

Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Official Trustee In Bankruptcy v Waa [2016] NTSC 69

No. 68 of 2016 (21635799)

BETWEEN:

Official Trustee In Bankruptcy

Plaintiff

AND:

Haerusiah Waa
Defendant

CORAM:     MASTER LUPPINO

REASONS

(Delivered 15 December 2016)

1. The proceedings in this matter were commenced by Originating Motion filed 28 July 2016. The Plaintiff is the Official Trustee In Bankruptcy (“Official Trustee”) and the trustee of the bankrupt estate of Quentin Carlos (“Carlos”).

2. The Plaintiff seeks orders in respect of the sale of a certain property. That property is co-owned by the Defendant and Carlos and it was their former matrimonial home. The Defendant claims that she and Carlos were de facto partners within the meaning of the De Facto Relationships Act (“DFR Act”).

3. By summons filed 7 September 2016 the Defendant has, as a prelude to seeking orders for property adjustment in these proceedings, sought orders for the joinder of Carlos in his personal capacity[1], for the matter to proceed as if commenced by Writ and consequential orders, for…