Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 5)

In the matter of Stolyar (Bankrupt) v Stolyar (No 5), the trustee, Scott, filed an interlocutory application seeking orders for the sale of a property located at Longworth Avenue. Mrs Stolyar, the bankrupt, opposed the application and argued that she should be permitted to sell the property herself. The dispute centred around a charge on Longworth Avenue, which secured payment of a significant debt owed to the trustee. The court had to decide whether to grant the trustee's application for the sale of the property by way of equitable execution or to allow Mrs Stolyar to sell the property herself.

The primary legal issue before the court was whether the sale of Longworth Avenue should be ordered by judicial sale or through the appointment of a receiver. The court considered the trustee's argument that a sale under his supervision would achieve a better outcome in terms of sale price and benefit the trustee, creditors, and Mrs Stolyar. Mrs Stolyar argued that she should be given the opportunity to sell the property herself, citing her experience in selling properties and the potential for a higher sale price. The court also had to determine whether the sale should await the outcome of the accounting exercise and the resolution of issues in relation to another property.

The court found that Mrs Stolyar could not meet the money judgments in favour of the trustee without the proceeds from the sale of Longworth Avenue. The court was satisfied that orders should be made for the sale of Longworth Avenue by way of equitable execution, with the trustee being appointed as receiver to undertake the sale. The court granted a period of 21 days for the parties to confer and, if they agree, to provide a form of draft orders to be made in chambers. If the parties cannot agree on the form of proposed orders, they should provide their competing sets of orders, and the proceeding will be listed for a case management hearing.

The final orders were that within 21 days of the date of publication of these reasons the parties are to confer and: (a) if they can agree on a form of orders reflecting these reasons, they are to provide draft orders, including in relation to the question of costs, to the Associate to Markovic J to be made in chambers; or (b) if they cannot agree on a form of orders, they are to provide their competing sets of orders to the Associate to Markovic J, including on the question of costs, and the proceeding will thereafter be listed for case management hearing.