Pascoe v Hooper

[2009] FMCA 520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v HOOPER (CORRIGENDUM) [2009] FMCA 520

BANKRUPTCY – Application by trustee for an order that a bankrupt vacate property.

Bankruptcy Act 1966 (Cth), ss.30, 55, 58, 77
Federal Magistrates Act 1999 (Cth), s.18
Federal Magistrates Court Rules, r.1.05
Federal Court Rules, O.27 r.7

Cook & Anor v Schwarcz [2005] FMCA 1598
Cook v Tagamilitsky [2001] FMCA 117
Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732
Official Receiver v Fall & Anor [2008] FMCA 489
Official Receiver v Tregaskis & Anor [2006] FMCA 1915
Pattison v McKinnon [2008] FCA 1624
Pattison v Wates & Anor [2007] FMCA 1068
Warner v Liddell [2006] FMCA 893
White v Lynn [1999] FCA 841

Applicant: SCOTT DARREN PASCOE

Respondent: KENNETH JOHN HOOPER

File Number: SYG 814 of 2009

Judgment of: Barnes FM

Hearing date: 26 May 2009

Delivered at: Sydney

Delivered on: 26 May 2009

REPRESENTATION

Counsel for the Applicant: Mr B Skinner

Solicitors for the Applicant: Kemp Strang

Respondent: No appearance

ORDERS

1. That the respondent vacate the property contained in Certificates of Title Volume 09306 Folio 825 and Volume 09306 Folio 826 known as Unit 12/325 Walker Street, Ballarat North, Victoria, within twenty-one (21) days of today's date.

2. That in the event that the respondent fails to give vacant possession of the property in accordance with Order 1, a writ of possession may issue forthwith.

3. The applicant’s costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent bankrupt.

4. Service of these orders be effected by personal service on the respondent.

5. Liberty to apply on three (3) days notice.

CORRIGENDUM

Judgment delivered by Barnes FM 26 May 2009 as [2009] FMCA 520

1. In paragraph [7] of the Reasons for Judgment the word “Tagamalitsky” should read “Tagamilitsky”. 

2. In paragraph [8] of the Reasons for Judgment the reference “s.77G” should read “s.77 (see s.77(1)(g))”.

3. In paragraph [8] of the Reasons for Judgment the word “Tagamalitsky” should read “Tagamilitsky”. 

_____________________________________________________________________I certify that the preceding (3) paragraphs are a true copy of the Corrigendum to the Judgment [2009] FMCA 520 of Barnes FM.

Associate:

Date: 5 June 2009

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 814 of 2009

SCOTT DARREN PASCOE

Applicant

And

KENNETH JOHN HOOPER

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 7 April 2009 by Scott Darren Pascoe in his capacity as trustee of the bankrupt estate of Kenneth John Hooper, seeking orders from the Court pursuant to ss.30, 58 and 77(1)(g) of the Bankruptcy Act1966 (Cth), s.18 of the Federal Magistrates Act 1999 (Cth), r.105 of the Federal Magistrates Court Rules and Order 27, rule 7 of the Federal Court Rules. In effect, and as clarified in short minutes of order handed up today, the applicant as trustee seeks an order that the respondent bankrupt vacate the property known as Unit 12, 325 Walker Street, Ballarat North, Victoria, and, in the event that he fails to do so, that a writ of possession may issue forthwith. The applicant also seeks costs. Counsel for the applicant agreed that service of any such orders should be effected by personal service on the respondent. The application is supported by an affidavit of Scott Darren Pascoe sworn on 2 April 2009.

2. There is evidence before the Court as to service of the original application and the affidavit of Scott Darren Pascoe, consisting of an affidavit of Lindsay Campbell, a licensed process server, sworn on 25 May 2009 and filed in Court today.  It attests to personal service of the application and affidavit (copies of which are annexed to the affidavit of service) on Mr Hooper. I accept on the basis of that material that the application and affidavit were served and hence that Mr Hooper was notified of the first return date.

3. The return date marked on the application is 9.45am on Tuesday, 12 May 2009. The matter came before a Registrar of the Court on 12 May 2009. There was no appearance by the respondent. There was an issue in relation to the adequacy of proof of service of the application and the matter was adjourned until today. The usual order for notification to the respondent was made by the Registrar. Such an order requires notification by pre-paid post of the orders made by the Court.

4. I am satisfied on the basis of the affidavit of Scott Darren Pascoe sworn on 25 May 2009 that on 13 May 2009 a letter of that date was sent to the respondent via pre-paid express post to the address in issue in these proceedings, referring to the trustee’s earlier request for vacant possession and advising him of the adjourned hearing date, time and place. A copy of that letter is attached to the affidavit which also advised the respondent that if he did not appear on 26 May 2009, orders would be sought for him to vacate the premises and for the issue of a writ to have him evicted.  It advised that it would be in his interests to obtain legal advice about his bankruptcy and the trustee’s application in order to sell the property and gave him the address of a legal aid office in Ballarat.

5. In addition, a copy of that letter was served personally on Mr Hooper, as attested to by the affidavit of Patrick John Monaghan sworn on 25 May 2009.  While that service took place on the day before the hearing, this was in addition to the service by way of express post.  Relevantly, Mr Hooper confirmed his identity and, according to Mr Monahan, appeared to read the document; said that he knew what it was about; indicated that he lived alone; and was advised that there was a telephone number on the letter for a legal aid office in Ballarat to which he again replied, "Yes, I know what it's about".  He kept a copy of the letter.

6. On the basis of this evidence I am satisfied with service of the application and supporting affidavit and also that the respondent, Mr Hooper, was on notice of the proceedings today.  He was not present when the matter was before the Registrar this morning.  Nor is he present now before the Court.  In these circumstances I consider that it is appropriate to consider the application for the orders that are sought in his absence.

7. The power of the Court to make orders of the nature sought in this case has been considered in a number of decisions of this Court.  In Cook v Tagamilitsky [2001] FMCA 117 Raphael FM discussed the power of the Court to make such orders. His Honour noted (at [9]) that:

   … although recovery of the assets of a debtor frequently involves the sale of the debtor's property and therefore the necessity to require a debtor to vacate possession of that property, there is no specific section in the Bankruptcy Act dealing with this matter in a codified form. Reference has to be made to a number of sections of the Act. However, it is obvious from cases such as Dixon v Ly Ty Tran Cao and Ors, a decision of Beazley J as she then was, unreported 23 June 1995 in the Federal Court and White (as trustee of the bankrupt estate of Lyn) v Lyn [1999] FCA 841 a decision of Finkelstein J, that the Court has power to make such orders and indeed to stay those orders on terms.

8. Raphael FM was of the view that s.30 of the Bankruptcy Act 1966 (Cth), taken together with s.77 (see s.77(1)(g)) were sufficient to ground the jurisdiction for orders such as those that are sought today. As I indicated in Cook & Anor v Schwarcz [2005] FMCA 1598 at [11], I agree that such provisions are sufficient to ground the jurisdiction for the orders sought. In that respect I note that a number of decisions of this Court have taken a similar approach (see Warner v Liddell [2006] FMCA 893, Official Receiver v Tregaskis & Anor [2006] FMCA 1915 although that addressed slightly different issues, Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732, Pattison v Wates & Anor [2007] FMCA 1068 and Official Receiver v Fall & Anor [2008] FMCA 489). In addition, in Pattison v McKinnon [2008] FCA 1624, Jessup J of the Federal Court took the same approach, acknowledging the correctness of the approach of Raphael FM in Cook v Tagamilitsky. 

9. Accordingly, I am of the view that the Court has the power to make the orders sought in this case.  I have had regard to the evidence before me, in particular the affidavit evidence from Scott Darren Pascoe in relation to what has occurred since the bankruptcy of Mr Hooper, the fact that he was the registered proprietor of land comprised in two certificates of title as identified in his affidavit, that he was removed as registered proprietor and that the trustee has become registered proprietor of the property in his place. 

10. There is also evidence of correspondence between the trustee and the bankrupt, including requests that Mr Hooper vacate the property to which there was no reply and discussion his statement of affairs which appears to have some inadequacies (including non-disclosure of the property in issue). There is a possible indication that after the bankrupt’s debts are met from realisation of the property (depending of course on how much it realises) there could be a surplus. The respondent had the opportunity to address his situation (had he sought to do so) by seeking the legal advice that the trustee suggested he might wish to obtain.

11. In order to complete his obligations as trustee, the trustee now wishes to obtain vacant possession of the bankrupt’s property so that it can be sold. To that end he seeks an order for vacant possession and in the absence of vacant possession that a writ of possession may issue forthwith. I consider that it is appropriate to make orders of the nature sought.

12. The short minutes of order as originally drafted proposed that the property should be vacated within 14 days of today's date. This an extension on the seven days sought in the original application. After discussion, Mr Skinner volunteered that he would have no difficulty with a longer period of time. I consider that 21 days is appropriate in light of the fact that this allows a final opportunity for the respondent to address his situation. I also consider that it is appropriate that service of these orders be effected by personal service on the respondent to ensure that he has an opportunity to seek advice. It would also be appropriate for a copy of the orders to be sent by pre-paid post, in case there should be some difficulty in effecting personal service in the near future.  Accordingly, I propose to make the orders now sought by the applicant. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  2 June 2009