Pattison v Wates

[2007] FMCA 1068

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATTISON v WATES & ANOR [2007] FMCA 1068

BANKRUPTCY – Trustee application for sale of property.

Official Receiver v Tregaskis & Anor [2006] FMCA 1915

Applicant: PAUL ANTHONY PATTISON AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH AND MELISSA WATES

First Respondent: KEITH WATES

Second Respondent: MELISSA WATES

File number: MLG 687 of 2007

Judgment of: McInnis FM

Hearing date: 4 July 2007

Delivered at: Melbourne

Delivered on: 4 July 2007

REPRESENTATION

Counsel for the Applicant: Mr T. Scotter

Solicitors for the Applicant: Kemon Pty Ltd t/as O’Neill Behan & Associates

First Respondent: In person

Second Respondent: In person

ORDERS

1. The Respondents vacate the property described as Volume 10092 Folio 946 and having a street address of 18 Ferguson Road, Leopold, Victoria (the property) within 30 days of the date of this order.

2. In the event that the Respondents fail to give vacant possession of the property in accordance with Order 1 hereof, a Writ of Possession may issue forthwith.

3. The Respondents shall pay the Applicant's costs, including reserved costs, if any, to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules and that the costs of the proceeding shall be paid with priority out of the bankrupt estate of the Respondents.

4. Liberty to apply is granted to the parties upon two days' written notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 687 of 2007

PAUL ANTHONY PATTISON AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH AND MELISSA WATES

Applicant

And

KEITH WATES

First Respondent

MELISSA WATES

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, Paul Anthony Pattison as Trustee of the Bankrupt Estate of Keith and Melissa Wates makes an application for a number of orders which include the following: 

   “That the respondents vacate the property described as volume 10092 folio 943 and having a street address of 18 Ferguson Road, Leopold, Victoria within 14 days of this order.”

2. Other orders are sought that in the event that the Respondents fail to give vacant possession of the property, then a writ of possession may issue.  The Applicant also seeks costs. 

3. The Applicant, in support of this application, relies upon two affidavits, the first an affidavit sworn 19 January 2007 by the Applicant which recites the background details as follows:-

   “1.I am the Trustee of the Bankrupt Estate of Keith Wates (VB No. 3822 of 2005) and the Bankrupt Estate of Melissa Wates (VB No. 4583 of 2005) having been appointed as Trustee of the Estate of Mr Wates on 25 October 2005 and of Mrs Wates on 22 December 2005.  Now produced and shown to me and marked with the letters ‘PP1’ are extracts from the National Personal Insolvency Index relating to my appointment as Trustee.

   2.…

   3.Since I was appointed Trustee of the Bankrupt Estate of Mr and Mrs Wates, there has been a series of discussions with them and their solicitors and accountants to seek to negotiate payments…