Pascoe v Nguyen - [2006] FMCA 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v NGUYEN

[2006] FMCA 227

BANKRUPTCY – Application of trustee of bankrupt estate for the sale of property – where the respondent is registered as the joint owner of that property – whether the respondent has any arguable case that would prevent the sale of the property.

Bankruptcy Act 1966 (Cth), s.30

Siew Fong Lin v Official Trustee in Bankruptcy [2001] FMCA 106

Applicant:

SCOTT DARREN PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF THANH Y NGUYEN

Respondent:

LIEN THI KHUAT NGUYEN

File Number:

SYG 3351 of 2005

Judgment of:

Raphael FM

Hearing date:

16 February 2006

Date of Last Submission:

16 February 2006

Delivered at:

Sydney

Delivered on:

16 February 2006

REPRESENTATION

Solicitor for the Applicant:

Mr P Soliman

Solicitors for the Applicant:

Thomson Playford

Solicitor for the Respondent:

Mr D Vo

ORDERS

The land comprised in Certificate of Title Folio Identifier 24/7/5701 and known as 9 Rosemont Street Punchbowl in the State of New South Wales (Land) be sold by the Applicant as Trustee for sale, with all the obligations and privileges pertaining (including signing for and on behalf of the Respondent any Contract for the Sale of Land and any Real Property Act form of Transfer and determining the price at which the Land is to be sold) and the proceeds after payment of all expenses of and incidental to such sale be divided equally between the Applicant and Respondent and that prior to distribution of the Respondent's share, there be deducted from such share the Applicant’s costs of and incidental to this application.
For the purposes of giving effect to Order 1, the Respondent must do all such things, acts and deeds and sign all documents to list for sale and sell the Land, and for that purpose, including but not limited to the following:
(i)agree upon a real estate agent(s) to be appointed to facilitate a sale of the Land;
(ii)agree upon a sale or reserve price at which the Land is to be listed for sale;
(iii)deliver a signed Real Property Act form of Transfer (Form No. 01T_v3-0) within 24 hours of being requested to do so by the Applicant;
(iv)maintain the Land in a clean and presentable manner as required for the proper and effective marketing of the Land;
(v)allow for an inspection of the Land on 24 hours notice of a request made by the Applicant or agent for sale; and
(vi)give vacant possession of the Land on 7 days notice of a request made by the Applicant or agent for sale or otherwise within 4 weeks from the date contracts for the sale of the Land have been exchanged.
Pending the sale of the Land, and to the extent that she is able, the Respondent shall continue to meet one half of the mortgage instalments and meet all other outgoings (including electricity, gas, telephone, council rates) in respect of the Land.
In the event that the Respondent defaults in payment of any…

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 Pascoe v Nguyen

Details

AGLC: Pascoe v Nguyen [2006] FMCA 227
Case: [2006] FMCA 227
Decision Date: 16 February 2006

CaseChat Overview and Summary

Pascoe v Nguyen involved a dispute between the applicant, Pascoe, and the respondent, Nguyen, regarding the sale of a property located at 9 Rosemont Street, Punchbowl, New South Wales. The case was heard and determined in the Federal Court of Australia. Pascoe sought an order for the sale of the property as the co-owner, given that the property was jointly owned but in a state of disrepair and not commercially viable for sale as it stood.

The court was tasked with deciding several key legal issues. It needed to determine whether the property should be sold given the circumstances and the inability to maintain it. If a sale was warranted, the court had to consider the appropriate conditions and procedures for the sale, including how the proceeds should be divided and what obligations the parties had during the sale process. Additionally, the court had to address the financial responsibilities of each party leading up to the sale and how any costs incurred should be managed.

In its reasoning, the court found that the property should indeed be sold due to its unmarketable condition and the impracticality of attempting to repair it. The court established a detailed order for the sale, specifying that Pascoe, as the trustee, would oversee the sale and handle all necessary paperwork. The proceeds from the sale were to be divided equally between Pascoe and Nguyen, with Nguyen required to contribute to the maintenance and outgoings of the property until the sale. The court also outlined the specific steps Nguyen must take to facilitate the sale and the consequences of any defaults in payments. Finally, the court addressed the distribution of the sale proceeds, prioritizing the discharge of existing encumbrances, sale-related costs, and statutory imposts before dividing the remaining balance equally between Pascoe and Nguyen. The court also ordered Nguyen to cover certain costs associated with the proceedings.

Orders

Orders of the court

The land comprised in Certificate of Title Folio Identifier 24/7/5701 and known as 9 Rosemont Street Punchbowl in the State of New South Wales (Land) be sold by the Applicant as Trustee for sale, with all the obligations and privileges pertaining (including signing for and on behalf of the Respondent any Contract for the Sale of Land and any Real Property Act form of Transfer and determining the price at which the Land is to be sold) and the proceeds after payment of all expenses of and incidental to such sale be divided equally between the Applicant and Respondent and that prior to distribution of the Respondent's share, there be deducted from such share the Applicant’s costs of and incidental to this application.

For the purposes of giving effect to Order 1, the Respondent must do all such things, acts and deeds and sign all documents to list for sale and sell the Land, and for that purpose, including but not limited to the following:

(i) agree upon a real estate agent(s) to be appointed to facilitate a sale of the Land;

(ii) agree upon a sale or reserve price at which the Land is to be listed for sale;

(iii) deliver a signed Real Property Act form of Transfer (Form No. 01T_v3-0) within 24 hours of being requested to do so by the Applicant;

(iv) maintain the Land in a clean and presentable manner as required for the proper and effective marketing of the Land;

(v) allow for an inspection of the Land on 24 hours notice of a request made by the Applicant or agent for sale; and

(vi) give vacant possession of the Land on 7 days notice of a request made by the Applicant or agent for sale or otherwise within 4 weeks from the date contracts for the sale of the Land have been exchanged.

Pending the sale of the Land, and to the extent that she is able, the Respondent shall continue to meet one half of the mortgage instalments and meet all other outgoings (including electricity, gas, telephone, council rates) in respect of the Land.

In the event that the Respondent defaults in payment of any money available pursuant to Order 3, then the appropriate adjustment and deduction shall be made from that person’s share of the proceeds on completion of a sale of the Land.

That upon completion of the sale of the Land, the proceeds thereof be distributed in the following manner and priority:

(i) First, in discharge of any mortgage or encumbrance now registered upon the title of the Land;

(ii) Secondly, in payment of agent’s commission, auctioneers and auction expenses, legal and any other costs associated with and reasonably incurred to effect the sale of the Land and/or place the Land in a saleable condition;

(iii) Thirdly, in adjustment of council rates, water rates and other statutory imposts appropriate and reasonable for a residential property of this nature;

(iv) Fourthly, in payment of the Applicant’s costs (professional and legal) per order 6 below;

(v) Fifthly, and subject to order 1, 4 and 5.4 above, in payment of the balance to be divided equally between the Applicant and the Respondent.

Respondent to pay the costs of the trustee in the total sum of $11,963 on the basis of the matters contained in the affidavit of Scott Darren Pascoe dated 15 November 2005 and the second affidavit of Scott Darren Pascoe dated 14 February 2006.

Respondent to pay the applicant's costs of the proceedings excluding the specific order for costs made on 17 January 2006 in relation to that day's hearing only, to be taxed, if not agreed, pursuant to the Federal Court Act and Rules on a party and party basis.

These orders be entered forthwith.

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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