Scott (Trustee) v Carter

[2020] FCCA 979

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTT (TRUSTEE) v CARTER [2020] FCCA 979

Catchwords:
BANKRUPTCY – Property of bankrupt – application by the Trustee in Bankruptcy for an Order pursuant to s 30 of the Bankruptcy Act 1966 (Cth) for vacant possession – whether relevant matters under the Uniform Civil Procedure Rules 2005 (NSW) are satisfied – whether there is sufficient power for the Court to make orders against the bankrupt – matter heard ex parte – orders made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.27, 30, 70

Uniform Civil Procedure Rules 2005 (NSW), r 39.1

Applicant: ANDREW JOHN SCOTT THE TRUSTEE OF THE PROPERTY OF NICOLE FRANCES CARTER A BANKRUPT

Respondent: NICOLE FRANCES CARTER

File Number: SYG 3211 of 2019

Judgment of: Judge Humphreys

Hearing date: 28 April 2020

Date of Last Submission: 28 April 2020

Delivered at: Parramatta

Delivered on: 28 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Skinner

Solicitors for the Applicant: CLH Lawyers

Solicitors for the Respondent: No Appearance

ORDERS

1. Orders pursuant to s 30 and s 77 of the Bankruptcy Act 1966 (Cth) that:

   (a)the Respondent deliver up vacant possession of the property known as 4 Colvin Place, Frenchs Forest in the state of New South Wales 2086, being the whole of the land in Certificate of Title Folio identifier 4/516655 (“Land”) to the Applicant within twenty-eight (28) days;

   (b)leave be granted pursuant to rule 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the issue of a writ of possession of the Land forthwith;

   (c)the execution of the writ referred to in Order 1.b. be stayed up for a period of twenty-eight (28 days).

   (d)the Respondent deliver up all keys and security codes for the Land to the Applicant within twenty-eight (28) days.

   (e)the Respondent remove form the Land all vehicles, rubbish and chattels which have not vested in the Applicant (“Personal Property”) within twenty-eight (28) days);

   (f)in the event the Respondent fails to comply with Order 1.e. that the Applicant be authorised to dispose of the Personal Property as he sees fit.

2. An order that the applicant’s costs of this application, be paid from the bankrupt estate of the respondent.

3. Above orders are stayed until 5:00pm 26 May 2020.

4. Grant liberty to apply on 3 days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3211 of 2019

ANDREW JOHN SCOTT, THE TRUSTEE OF THE PROPERTY OF NICOLE FRANCES CARTER, A BANKRUPT

Applicant

And

NICOLE FRANCES CARTER

Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. This is an application by Andrew John Scott, as Trustee for the property of Nicole Frances Carter, a bankrupt, in relation to orders that the respondent deliver up vacant possession of a property, known as 4 Colvin Place, Frenchs Forest (“the property”). That property now being in the sole ownership of the respondent.

2. It is now some 9.48am. The matter was listed at 9.30am. There has been no appearance by the respondent. At approximate 8.11am today, my chambers received an email from the respondent, indicating that she had been called to work because someone had called in sick. The Court does not accept that this is a reasonable excuse for the respondent, bearing in mind all that was required, was that she be available for a short period of time via telephone.

3. The respondent acknowledges that she has not perhaps given this matter her attention and the Court does not accept, subject to what might be said later, that her non-appearance is not acceptable. The Court therefore proposes to proceed with the matter ex parte.

Background

1. The circumstances are that the applicant is the trustee in a bankrupt estate and was appointed sole trustee for the respondent’s estate on 21 August 2017. The respondent is the sole registered proprietor of the property. The applicant relies on evidence, which the Court received, an affidavit of Andrew John Scott filed 5 December 2019, together with an associated exhibit of AJS1 filed 24 April 2020 and an affidavit of Rebecca Shaool filed 24 January 2020.

Consideration

1. The Court is satisfied that the respondent is aware of the hearing today, as evidenced by her email this morning. The Court is satisfied, pursuant to s 27 of the Bankruptcy Act 1966 (Cth) that the Court has jurisdiction to make the orders sought. The Court is satisfied that all relevant matters are required under the Uniform Civil Procedure Rules 2005 (NSW), which are the relevant matters, have been complied with. The Court is satisfied that there is sufficient power for the Court to make orders against the bankrupt, for the vacation of property, the issuing of a writ of possession and for the sale of the property to take place.

Conclusion

1. The Court proposes to make orders, as set out in draft orders, that were provided to the Court, they being as follows:

   1) Orders pursuant to s 30 and s 77 of the Bankruptcy Act 1966 (Cth) that:

   a) the Respondent deliver up vacant possession of the property known as 4 Colvin Place, Frenchs Forest in the state of New South Wales 2086, being the whole of the land in Certificate of Title Folio identifier 4/516655 (“Land”) to the Applicant within twenty-eight (28) days;

   b) leave be granted pursuant to rule 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the issue of a writ of possession of the Land forthwith;

   c) the execution of the writ referred to in Order 1.b. be stayed up for a period of twenty-eight (28 days).

   d) the Respondent deliver up all keys and security codes for the Land to the Applicant within twenty-eight (28) days.

   e) the Respondent remove form the Land all vehicles, rubbish and chattels which have not vested in the Applicant (“Personal Property”) within twenty-eight (28) days);

   f) in the event the Respondent fails to comply with Order 1.e. that the Applicant be authorised to dispose of the Personal Property as he sees fit.

   2) An order that the applicant’s costs of this application be paid from the bankrupt estate of the respondent.

   3) Above orders are stayed until 5:00pm 26 May 2020.

   4) Grant liberty to apply on 3 days’ notice

2. The purpose of such a stay, is to allow the respondent further time to refinance, which she makes reference to in her email. It also means that the respondent has the opportunity of seeking a review of the Court’s orders, in relation to this matter, should she so fit.

3. The Court is conscious, of course, in making such an order of the impact of the current health emergency and the Court notes the consent of the applicant that the orders the Court has granted, be stayed.

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

Associate:

Date: 29 May 2020