Petrie, Trustee of the Property of Aitken (Bankrupt) v Aitken

[2019] FCCA 1708

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETRIE, TRUSTEE OF THE PROPERTY OF AITKEN (BANKRUPT) v AITKEN & ORS [2019] FCCA 1708

Catchwords:

BANKRUPTCY – Application for the possession and orders for sale in respect of two properties – trustee entitled to realise the property for the benefit of the creditors – trustee has established an interest in respect of the respected properties.

Legislation:

Bankruptcy Act 1966 (Cth), s.27

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: NATASHA MARGARET PETRIE, THE TRUSTEE OF THE PROPERTY OF AITKEN, A BANKRUPT

First Respondent: PETER DAVID AITKEN

Second Respondent: JUDITH ANNE WINIFRED AITKEN

Third Respondent: HENRY FOTHERINGHAM AITKEN

File Number: PEG 75 of 2018

Judgment of: Judge Street

Hearing date: 20 June 2019

Date of Last Submission: 20 June 2019

Delivered at: Perth

Delivered on: 20 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr A Carles
Carles Solicitor

The First Respondent appeared in person and departed half way through the hearing

ORDERS

1. The matter proceed under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. The application in a case filed 12 March 2018 is dismissed.

3. A declaration that the Applicant of the one part and the Second Respondent of the other part are the beneficial owners as tenants-in-common in equal shares of the property known as 8 Alsace Street, Carine comprised in Certificate of Title Volume 1376 Folio 798 ("8 Alsace Street").

4. A declaration that the Applicant is the sole beneficial owner of the property known as 8A Alsace Street; Carine comprised in Certificate of Title Volume 1376 Folio 799 ("8A Alsace Street").

5. The First and Second Respondents deliver up vacant possession of 8 Alsace Street together with the duplicate Certificate of Title for that property to the Applicant within 30 days from the date of this order.

6. The First and Second Respondents deliver up all keys and security codes for all buildings and improvements on 8 Alsace Street to the Applicant within 30 days from the date of this order.

7. The First and Second Respondents remove from 8 Alsace Street all vehicles, rubbish and chattels which have not vested in the Applicant within 30 days from the date of this order.

8. In the event that the First and Second Respondents fail to comply with order 7, the Applicant may remove and dispose of the property referred to in that order as she sees fit after 30 days have passed from the date of this order.

9. A Property (Seizure and. Delivery) Order pursuant to the Civil Judgments Enforcement Act 2004 (WA) ("PSDO") issue in respect of 8 Alsace Street in favour of the Applicant, such PSDO to lie in the Registry until the filing by the Applicant, not before 30 days from the date of this Order, of an affidavit stating that the First and Second Respondents have not given vacant possession of 8 Alsace Street upon which the PSDO be issued forthwith to the Applicant.

10. 8 Alsace Street be sold by private treaty for an initial period of 90 days and thereafter by public auction or, if not sold at public auction, then by private treaty or public tender.

11. The Applicant is to set a reserve price for the auction of 8 Alsace Street having regard to any advice received from a licensed valuer.

12. The Applicant has the sole conduct and control of the sale of 8 Alsace Street, and is authorised to make all decisions with regard to the sale including appointing a Real Estate Agent and appointing solicitors or settlement agents to undertake necessary conveyancing work with any such appointments to be at reasonable commercial rates.

13. The Applicant is authorised and empowered to sign on behalf of the Second Respondent any contract of sale, discharge of mortgage authority, Transfer of Land or any other documents required to effect a sale of 8 Alsace Street, in the event the Second Respondent refuses, fails or neglects to sign such documents within such time as required by the Applicant's solicitors.

14. The Second Respondent has liberty to bid at any auction sale of 8 Alsace Street, or to submit an offer to purchase 8 Alsace Street provided the bid or offer is genuine and the Second Respondent has approved funding to be able to complete the purchase.

15. The proceeds of the sale of 8 Alsace Street be disbursed as follows:

    (a)First, in payment of all selling costs including agent commissions, advertising and marketing expenses, conveyancing and legal costs associated with the sale and in discharging any encumbrances against the title to 8 Alsace Street;

    (b)Secondly, half of the then available proceeds to be paid to the Second Respondent; and

    (c)Thirdly, all remaining proceeds to be paid to the Applicant as Trustee of the Bankrupt Estate of Peter David Aitken.

16. The Second Respondent pay the Applicant's costs of these proceedings in so far as they relate to 8 Alsace Street, such costs to be taxed if not agreed.

17. The First and Third Respondents deliver up vacant possession of 8A Alsace Street to the Applicant within 30 days from the date of this order.

18. The First and Third Respondents deliver up all keys and security codes for all buildings and improvements on 8A Alsace Street to the Applicant within 30 days from the date of this order.

19. The First and Third Respondents deliver up the duplicate Certificate of Title and duly executed National Australia Bank Ltd discharge of mortgage for 8A Alsace Street to the Applicant within 30 days from the date of this order.

20. The First and Third Respondents remove from the Property all vehicles, rubbish and chattels which have not vested in the Applicant within 30 days from the date of this order.

21. In the event that the First and Third Respondents fail to comply with order 20, the Applicant may remove and dispose of the property referred to in that order as she sees fit after 30 days have passed from the date of this order.

22. A Property (Seizure and Delivery) Order pursuant to the Civil Judgments Enforcement Act 2004 (WA) ("PSDO") issue in respect of 8A Alsace Street in favour of the Applicant, such PSDO to lie in the Registry until the filing by the Applicant, not before 30 days from the date of this Order, of an affidavit stating that the First and Third Respondents have not given vacant possession of 8A Alsace Street upon which the PSDO be issued forthwith to the Applicant.

23. The Third Respondent has liberty to bid at any auction sale of 8A Alsace Street, or to submit an offer to purchase 8A Alsace Street, provided the bid or offer is genuine and the Third Respondent has approved funding to be able to complete the purchase.

24. The proceeds of the sale of 8A Alsace Street be disbursed as follows:

    (a)First, in payment of all selling costs including agent commissions, advertising and marketing expenses, conveyancing and legal costs associated with the sale and in discharging any encumbrances against the title to 8A Alsace Street;

    (b)Secondly, all remaining proceeds to be paid to the Applicant as Trustee of the Bankrupt Estate of Peter David Aitken.

25. The Third Respondent pay the Applicant's costs of these proceedings in so far as they relate to 8A Alsace Street, such costs to be taxed if not agreed.

26. There be liberty to apply on 48 hours' written notice to the other parties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 75 of 2018

NATASHA MARGARET PETRIE, THE TRUSTEE OF THE PROPERTY OF AITKEN, A BANKRUPT

Applicant

And

PETER DAVID AITKEN

First Respondent

JUDITH ANNE WINIFRED AITKEN

Second Respondent

HENRY FOTHERINGHAM AITKEN

Third Respondent

REASONS FOR JUDGMENT

1. These are proceedings within the Court’s jurisdiction under s 27 of the Bankruptcy Act1966 (Cth) (“the Act”). The applicant is seeking the possession and orders for sale in respect of two properties, one of which has vested in full in the applicant by reason of the bankruptcy of the first respondent. The second property is the subject of joint ownership and the interest of the first applicant has vested in the applicant by reason of the bankruptcy. The applicant commenced proceedings on 6 February 2018 for orders in relation to possession and sale of the properties.

2. The proceedings have had an unfortunate procedural history. Ordinarily, all bankruptcy proceedings are dealt with promptly because of the interests involved and the requirements of the Act. On 10 April 2019, this Court made orders fixing the matter for hearing today.

3. At the commencement of the hearing a person, Mr N Piccinin, who is not a lawyer attempted to appear for the first respondent at the bar table. Mr Piccinin, not being a lawyer, had no right to appear for the first respondent. Mr Piccinin defied the Court’s orders to sit down, and it was only after the Court expressed firmly the need to leave the bar table that Mr Piccinin did so. Mr Aitken then appeared and identified that his father, the third respondent, is suffering from dementia and that his wife, the second respondent, is not here because she has the flu.

4. The Court explained to Mr Aitken that it was proposing to proceed to hear the substantive matter and the application in a case. The Court commenced the hearing and after the reading of affidavits by the applicant the Court turned to ask Mr Aitken whether he wished to have read the affidavits he had filed. At that stage there was a commotion from a number of persons sitting in the back of the Court who started instructing Mr Aitken to leave the proceedings. The conduct of the persons at the back of the Court was interfering in the conduct of the proceedings and was a contempt of Court for which they could have been charged, if the Court sought to do so. It was most unfortunate that those persons thought it an appropriate occasion to voice objections in respect of the proceedings that were taking place. It was even more unfortunate that Mr Aitken, contrary to his own interests, decided to leave the proceedings.

5. It was in those circumstances that the Court then made an order under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) that the hearing of the proceedings would continue. Where a litigant deliberately decides to leave a hearing is not a basis upon which the hearing should be adjourned. Moreover, the applicant has a proper case that is entitled to be heard and it is a most unfortunate position where Mr Aitken has engaged in conduct that was inappropriate and discourteous to the Court.

6. Mr Aitken made purported objections in respect of the affidavits that were meaningless and, for some reason, thought that he would challenge the jurisdiction of the Court. This Court has jurisdiction over bankruptcy matters, as I have identified pursuant to s 27 of the Act. It is to be regretted that Mr Aitken was influenced by the other persons in the Court and that he joined in their behaviour. I do not, however, regard it as necessary or appropriate in the interests of the administration of justice to have him dealt with for contempt.

7. It is appropriate, however, having heard the affidavit evidence to make orders in respect of the property that have been vested in the trustee. The trustee is entitled to realise the property for the benefit of the creditors and indeed has a duty to do so.

8. I am satisfied that the trustee has established an interest in respect of the respected properties the subject of the proposed orders and that it is appropriate to make the orders sought by the applicant.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  19 July 2019