Pascoe v Smirneos & Ors - [2010] FMCA 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v SMIRNEOS & ORS

[2010] FMCA 404

BANKRUPTCY – Application by trustee for orders in aid of realising bankrupt’s interest in real estate – property co-owned with non-bankrupt spouse – principal creditor seeking execution against co-owner for joint indebtedness – jurisdiction of court not contested – orders made for appointment of trustees for sale with vacant possession.

Bankruptcy Act 1966 (Cth), ss.30, 30(1), 58
Federal Court Rules (Cth), O.63
Federal Magistrates Act 1999 (Cth), ss.14, 15, 18
Federal Magistrates Court Rules 2001 (Cth), r.1.05(3)(b), Sch.3 Pt.2
Conveyancing Act 1919 (NSW), s.66G, Div.6 Pt.IV

Park v Barclay [2010] FMCA 397
Pattison v McKinnon [2008] FCA 1624

Applicant:

SCOTT DARREN PASCOE

in his capacity as trustee of the property of Helen Smirneos, a Bankrupt

First Respondent:

HELEN SMIRNEOS, A BANKRUPT

Second Respondent:

ANDREW SMIRNEOS

Third Respondent:

GEOFFREY REIDY
in his capacity as trustee of the property of Peter Smirneos, a Bankrupt

Fourth Respondent:

WESTPAC BANKING CORPORATION

ABN 33 007 457 141

Fifth Respondent:

NATIONAL LENDING PTY LIMITED

ACN 119 336 631

File Number:

SYG 346 of 2010

Judgment of:

Smith FM

Hearing date:

7 June 2010

Delivered at:

Sydney

Delivered on:

7 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr B Skinner

Solicitors for the Applicant:

Kemp Strang

Counsel for the First Respondent:

No appearance by or on behalf of the First Respondent

Counsel for the Second Respondent:

No appearance by or on behalf of the Second Respondent

Counsel for the Third Respondent:

Mr P Cutler

Counsel for the Fourth Respondent:

No appearance by or on behalf of the Fourth Respondent

Counsel for the Fifth Respondent:

Mr J Hogan-Doran

Solicitors for the Fifth Respondent:

Tucker & Cowen

ORDERS

The First and Second Respondents and any occupants of the whole of the land Folio Identifier 12/5/2166, known as 124 Tennyson Road, Gladesville in the State of New South Wales (“the Property”), vacate the Property within seven (7) days after the date of this order.
A writ of possession issue forthwith in the event that either of the First and Second Respondents or any other occupants fail to provide vacant possession of the Property in accordance with order 1 above.
The Applicant and Mark Robinson both of Level 5, 55 Hunter Street, Sydney, in the State of New South Wales (“the Trustees”), are appointed trustees for sale of the Property.
The Property is vested in the Trustees, subject to any encumbrances affecting the entirety of the said land but free from encumbrances, if any, affecting any undivided share or shares therein, to be held by the Trustees upon the statutory trust for sale created pursuant to Division 6 Part IV of the Conveyancing Act 1919 (NSW) subject to any alterations made by these orders.
The Trustees are empowered to offer the Property for sale and to sell the Property by public auction with power to fix a reserve price, or alternatively, to sell the Property by private treaty at the best available price.
The Trustees are empowered and…

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 Smirneos & Ors

Details

AGLC: Pascoe v Smirneos & Ors [2010] FMCA 404
Case: [2010] FMCA 404
Decision Date: 7 June 2010

CaseChat Overview and Summary

In the Federal Circuit Court, Pascoe v Smirneos & Ors, the applicant, Pascoe, sought a writ of possession and a declaration of ownership of a property located at 124 Tennyson Road, Gladesville, New South Wales, and an order for the sale of the property. The respondents included various parties with interests in the property, including the occupants, the holders of caveats, and those with judgments against the property. The case revolved around the competing claims to the property and the legal rights of the parties involved.

The court had to determine the validity of the applicant’s claim to the property and the rights of the various respondents. This included examining the applicant’s status as the trustee in bankruptcy of one of the respondents and the effect of the trustee’s appointment on the property. The court also needed to consider the effect of the various caveats and judgments on the property and whether they could be overridden by the applicant’s rights. Additionally, the court had to address the orders for sale and the appointment of trustees, ensuring that the sale process complied with the relevant statutory provisions.

The court found in favour of the applicant, Pascoe, and made several orders regarding the property. The First and Second Respondents, along with any occupants, were required to vacate the property within seven days. A writ of possession was to issue if they failed to do so. The Trustees were appointed to hold the property for sale and were empowered to sell it by auction or private treaty. The court detailed the distribution of the net proceeds of sale, giving priority to the mortgagee, the costs of the application, and the costs of the respondents. The remaining proceeds were to be distributed between Pascoe and the other respondents, in accordance with their respective claims. The court also addressed the removal of caveats and writs by the respondents and gave the Trustees the authority to execute the instruments if the respondents failed to comply.

The final orders included the requirement for the respondents to vacate the property, the appointment of Trustees for the sale, and the detailed distribution of the proceeds of sale. The Trustees were given broad powers to conduct the sale and to obtain valuations. The court emphasised the need for the respondents to provide the necessary documents for the removal of caveats and writs and gave the Registrar the authority to execute these documents if necessary. The parties were granted liberty to apply for further orders if needed.

Orders

Orders of the court

The First and Second Respondents and any occupants of the whole of the land Folio Identifier 12/5/2166, known as 124 Tennyson Road, Gladesville in the State of New South Wales (“the Property”), vacate the Property within seven (7) days after the date of this order.

A writ of possession issue forthwith in the event that either of the First and Second Respondents or any other occupants fail to provide vacant possession of the Property in accordance with order 1 above.

The Applicant and Mark Robinson both of Level 5, 55 Hunter Street, Sydney, in the State of New South Wales (“the Trustees”), are appointed trustees for sale of the Property.

The Property is vested in the Trustees, subject to any encumbrances affecting the entirety of the said land but free from encumbrances, if any, affecting any undivided share or shares therein, to be held by the Trustees upon the statutory trust for sale created pursuant to Division 6 Part IV of the Conveyancing Act 1919 (NSW) subject to any alterations made by these orders.

The Trustees are empowered to offer the Property for sale and to sell the Property by public auction with power to fix a reserve price, or alternatively, to sell the Property by private treaty at the best available price.

The Trustees are empowered and authorised to obtain valuations of the Property prior to advertising it for sale.

Any party is at liberty to purchase the Property whether at auction or at private treaty.

The Trustees shall hold the net proceeds of sale of the Property, after deduction of their costs and expenses, rates, taxes, costs of insurance, repairs properly payable out of income and other outgoings, upon trust:

(a) For Westpac Banking Corporation in the amount secured by Mortgage registered number AC243751.

(b) To pay the amount of $82,520.02 into Court to be administered pursuant to Federal Magistrates Rules r.1.05(3)(b) and Sch.3 Pt.2, adopting Federal Court Rules O.63.

(d) As to one half of the balance, for the Applicant as trustee in bankruptcy of the property of the First Respondent.

(e) As to the remaining half of the balance, for the Fifth Respondent in the amount owing by the Second Respondent under the judgment of the District Court in proceedings File.4502/07 entered on 6 February 2008, and including any interest due on that judgment and its costs of attempting to enforce the judgment in that Court.

(f) To pay any remaining monies into Court to be administered pursuant to Federal Magistrates Rules r.1.05(3)(b) and Sch.3 Pt.2, adopting Federal Court Rules O.63.

The Third Respondent must provide the Trustees with a withdrawal of Caveat No. AD432197 in registrable form at or prior to settlement of any sale.

10.

The Fifth Respondent must provide the Trustees with a withdrawal of Caveat No. AC832670 in registrable form at or prior to settlement of any sale.

11.

The Fifth Respondent must provide the Trustees with a withdrawal of Writ No. AE157620 in registrable form at or prior to settlement of any sale.

12.

If either the Third or Fifth Respondents fail to comply with any of the orders in the preceding three paragraphs, the Registrar may execute any of the instruments referred to in those orders.

13.

The Trustees, the parties, and any person or persons claiming an interest in the funds paid into Court, have liberty to apply to the Court for directions and further orders in relation to any matter arising under these orders.

14.

The applicant must serve a copy of these orders on the First, Second, Third, and Fourth Respondents before 5pm on 8 June 2010. Service on the First and Second Respondents may be effected in person or by leaving a copy attached to the front door of the Property.

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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