FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PASCOE v SMITH & ANOR | [2011] FMCA 528 |
| BANKRUPTCY – Application by former trustee of bankrupt’s estate for a declaration and orders in relation to property in the name of the trustee and the second respondent. |
| Conveyancing Act 1919 (NSW), s.66G Bankruptcy Act 1966 (Cth), ss.19, 27, 30, 50, 58, 77, 129AA, 130, 149 Federal Magistrates Act1999 (Cth), ss.15, 16, 18 |
| Applicant: | SCOTT DARREN PASCOE AS FORMER TRUSTEE IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT ESTATE OF SMITH |
| First Respondent: | KEVIN JOHN SMITH |
| Second Respondent: | SALLY ANNE GURR |
| File Number: | SYG 722 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 31 May 2011 & 7 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Farrar Lawyers |
| Respondents: | No appearance |
DECLARATIONS
The applicant and the second respondent are the beneficial owners of the property known as 26 Tobruk Ave, Muswellbrook in the State of New South Wales being folio identifier 15/237872 (the Property).
ORDERS
The first respondent deliver up vacant possession of the Property to the applicant within 28 days of the date of these orders.
The first respondent deliver up all keys for all buildings and improvements on the Property to the applicant within 28 days of the date of these orders.
The second respondent deliver up vacant…
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- AGLC
- Pascoe v Smith [2011] FMCA 528
- Case
- [2011] FMCA 528
- Decision Date
CaseChat Overview and Summary
The court had to determine whether Pascoe was entitled to the orders sought, given the nature and terms of the agreement between the parties. It was necessary to interpret the contract and assess whether the respondents had breached any of its terms, which would justify the orders sought by Pascoe. The court also needed to consider the appropriate relief to grant Pascoe, particularly regarding the sale of the property and the division of the proceeds.
The court found that the respondents had indeed breached the agreement, warranting the delivery of vacant possession and the removal of personal property not vested in Pascoe. The court also concluded that the sale of the property was the appropriate remedy and granted Pascoe the sole authority to conduct the sale, including deciding the method and setting a reserve price. The net proceeds of the sale were to be divided equally between Pascoe and the second respondent, after accounting for the costs and encumbrances. The court further directed the respondents to cooperate with Pascoe in achieving a sale of the property.
The court issued orders in line with Pascoe’s requests, mandating the respondents to deliver vacant possession and keys, remove personal property not vested in Pascoe, and cooperate with the sale of the property. The sale was to be conducted by Pascoe, who had the sole authority to decide the method and reserve price. The net proceeds of the sale were to be divided equally between Pascoe and the second respondent. The court also provided liberty for any party to apply for further orders and directed Pascoe to notify the respondents of the orders made.
Orders
Orders of the court
1.
The first respondent deliver up vacant possession of the Property to the applicant within 28 days of the date of these orders.
2.
The first respondent deliver up all keys for all buildings and improvements on the Property to the applicant within 28 days of the date of these orders.
3.
The second respondent deliver up vacant possession of the Property to the applicant within 28 days from the date of these orders.
4.
The second respondent deliver up all keys of all buildings and improvements on the Property to the applicant within 28 days of the date of these orders.
5.
In the event that the respondents fail to deliver up vacant possession of the Property in accordance with the orders above a writ possession will issue forthwith in favour of the applicant.
6.
The respondents must remove from the Property all personal property being vehicles, rubbish and chattels (personal property) which are not vested in the applicant within 28 days of the date of these orders.
7.
In the event that the respondents fail to comply with order 6 above the applicant is empowered to remove and dispose of the personal property on the Property as he sees fit.
8.
The Property is to be sold free from encumbrances.
9.
The Property is to be sold subject to the Law Society of New South Wales standard form contract and any special conditions reasonably required by the applicant.
10.
The applicant has the sole conduct of the sale of the Property and is authorised to instruct an agent or an auctioneer for that purpose.
11.
The applicant is solely to decide whether the Property is to be sold by public auction or private treaty.
12.
The applicant is solely to decide whether or not to set a reserve for any auction of the Property and, if so, at what price.
13.
The applicant is empowered to sign any contract of sale, discharge of mortgage authority, transfer and any other documents on behalf of the second respondent necessary to give effect to the sale in the event that the second respondent does not sign such documents within such time as required by the applicant’s solicitors.
14.
The first and second respondents do all things as may be reasonably required by the applicant, his selling agent or his solicitors for the purpose of achieving a sale of the Property including providing access to buildings on the Property and for the purpose of valuation and viewing by potential purchasers.
15.
The second respondent has liberty to bid at the sale of the Property; subject to satisfying the applicant of the second respondent’s ability to complete any such purchase.
16.
The net proceeds of the sale of the Property after payment of any monies due to any encumbrancer or encumbrancers according to their priorities, the cost of these proceedings, and all other costs, charges and expenses of the sale of the Property, be paid to the applicant and the second respondent in equal shares.
17.
Liberty to any party to apply on three days notice.
18.
The applicant notify the respondents of the orders made today by email, facsimile and mail despatched by close of business today.
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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