Ramsay as Trustee of the Bankrupt Estate of Coorey v Coorey
[2020] FCA 1301
•3 August 2020
FEDERAL COURT OF AUSTRALIA
Ramsay as Trustee of the Bankrupt Estate of Coorey v Coorey [2020] FCA 1301
File number: QUD 78 of 2020 Judgment of: LOGAN J Date of judgment: 3 August 2020 Catchwords: BANKRUPTCY AND INSOLVENCY – where the respondent’s debtor’s petition was accepted – where endeavours to secure alternative means of finance failed – where residential property forms part of the property of the bankrupt – whether orders should be made for vacant possession of the respondent’s residential property Bankruptcy Act 1966 (Cth) ss 30, 77 Legislation: Bankruptcy Act 1966 (Cth) ss 30, 77 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 12 Date of hearing: 3 August 2020 Counsel for the Applicant: Mr C Coulsen Solicitor for the Applicant: Sajen Legal Counsel for the Respondent: Ms E Coorey, the Respondent’s daughter, appeared by leave, on behalf of the Respondent ORDERS
QUD 78 of 2020 BETWEEN: HUGH DAVID RAMSAY AS TRUSTEE OF THE BANKRUPT ESTATE OF JOSEPHINE IRENE COOREY (QLD 3450 OF 2017/0)
Applicant
AND: JOSEPHINE IRENE COOREY
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
3 AUGUST 2020
THE COURT ORDERS THAT:
1.Pursuant to sections 30 and 77 of the Bankruptcy Act 1966 (Cth) the Respondent vacate the real property situated at 39 Solar Street, Coorparoo in the State of Queensland more particularly described as the land situated at Lot 2, Registered Plan 886029, Title Reference 50048069 (the Property), within 60 days of the date of the Order in order to enable the Property to be sold with vacant possession.
2.In the event that the Respondent fails to give vacant possession of the Property in accordance with paragraph 1 above, pursuant to rule 41.10(2) of the Federal Court Rules 2011 (Cth), a writ of possession may issue forthwith.
3.The Applicant’s costs of this proceeding be paid out of the bankrupt estate of the Respondent, with priority.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Ms Josephine Irene Coorey (Ms Josephine Coorey) became a bankrupt in 2017 upon the acceptance of a debtor’s petition which she presented. Initially, her trustee in bankruptcy was the official trustee in bankruptcy within the (formerly the Insolvency and Trustee Service of Australia). Later, however, Mr Hugh David Ramsay (Mr Ramsay) succeeded to the role of trustee.
One of the assets in Ms Josephine Coorey’s bankrupt estate, indeed the principal asset, is a residential property at 39 Solar Street, Coorparoo in Queensland, being land more particularly described as Lot 2, Registered Plan 886029, Title Reference 50048069 (the property).
The property is presently occupied by Ms Josephine Coorey. She is an elderly lady whom, I was informed today, is presently bedridden and expecting to undergo hip surgery imminently. The source of that information was her daughter, Ms Emma Coorey. Ms Emma Coorey sought, and was granted, leave by me today to speak on her mother’s behalf.
The hearing today, as a result of the present COVID-19 public health situation, was necessarily conducted by telephone. Ms Emma Coorey informed me, and I accept that her mother is also presently with her.
There are two principal group creditors of the bankrupt estate. One is a lender with a security over the property as well as credit card creditors.
Ms Josephine Coorey is a widow. Her sole source of income, so I was informed by her daughter, is the age pension. Endeavours have been made, I do not doubt in good faith, to try and secure some alternative means of finance which might see both the debts in the bankruptcy, including the costs of administration, paid out. Unfortunately, endeavours in that regard have as at today not resulted in any alternative means of finance being secured.
The evidence read on behalf of Mr Ramsay as trustee persuades me firstly that Ms Josephine Coorey is indeed a bankrupt, and, further, that the property does indeed form part of the property of the bankrupt in terms of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
Initially, Mr Ramsay was disposed to seek vacant possession within 21 days. However, upon being appraised today by Ms Emma Coorey of her mother’s personal circumstances at present, the trustee very properly promoted that vacant possession not be given within 21 days, but rather within 60 days. The allowing of 60 days is appropriate because, in my view, having regard to the imminence of surgery, and what I infer must necessarily be entailed in the giving of vacant possession of a home long occupied within a family, anything less than that would be unjust.
Ms Josephine Coorey, the bankrupt, has, with respect, been very well served by her daughter, Ms Emma Coorey, both in relation to the present proceeding and, from what I can gather from what I heard today, in dealing with her present health situation. This must be the most awfully stressful of times, both for Ms Josephine Coorey as well as her dutiful daughter.
Hard cases, it has been said, can make bad law. Were I to do other than to agree with the operation of the Bankruptcy Act, as submitted by the trustee, in the circumstances, I would be making bad law. That is something I must not do.
In my view, the effect of bankruptcy is such that having regard to the Court’s powers under s 30 and s 77 of the Bankruptcy Act, it is possible for this Court, in the exercise of its bankruptcy jurisdiction, to order that a bankrupt give vacant possession of real property which forms part of the property of the bankrupt.
The trustee has, in my view, established all of the elements necessary to secure that relief. Ms Emma Coorey did not seek to adduce any evidence to the contrary, although offered an opportunity so to do. There will be orders accordingly.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 14 September 2020
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