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 |
| 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
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.
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.
The applicant’s costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent bankrupt.
Service of these orders be effected by personal service on the respondent.
Liberty to apply on three (3) days notice.
CORRIGENDUM
Judgment delivered by Barnes FM 26 May 2009 as [2009] FMCA 520
In paragraph [7] of the Reasons for Judgment the word “Tagamalitsky” should read “Tagamilitsky”.
In paragraph [8] of the Reasons for Judgment the reference “s.77G” should read “s.77 (see s.77(1)(g))”.
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)
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…
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- AGLC
- Pascoe v Hooper [2009] FMCA 520
- Case
- [2009] FMCA 520
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred around the rights of the parties to the property and the enforcement of a court order. Specifically, the court needed to determine whether Pascoe was entitled to possession of the property and if so, what orders should be made to effectuate this. The court also had to consider the implications of the respondent being a bankrupt and the costs associated with the proceedings.
The Federal Magistrate, Barnes FM, found that Pascoe was indeed entitled to possession of the property. The court concluded that Hooper had no valid claim to the property and that Pascoe had the right to immediate possession. Consequently, the court ordered that Hooper vacate the property within 21 days, with the possibility of a writ of possession being issued if the order was not complied with. Additionally, the court ruled that the costs of the proceedings were to be paid by the respondent, in this case, the bankrupt estate of Hooper. The court also specified that service of the orders should be carried out by personal service on Hooper.
In summary, the court issued an order for Hooper to vacate the property, with a writ of possession to follow if the order was not complied with, and directed that the costs of the proceedings be paid from Hooper's bankrupt estate. These orders were to be personally served on Hooper, with liberty to apply for further orders after three days' notice.
Orders
Orders of the court
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
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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