Sutherland as trustee of the Bankrupt Estate of Leayr v Leayr

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUTHERLAND AS TRUSTEE OF THE BANKRUPT ESTATE OF LEAYR v LEAYR

[2012] FMCA 128

BANKRUPTCY – Application by trustee for an order that bankrupt vacate property – consent of bankrupt.

Bankruptcy Act 1966 (Cth) ss.30, 77

Pascoe v Smith [2011] FMCA 528
Pattison v McKinnon [2008] FCA 1624

Applicant:

SUTHERLAND AS TRUSTEE OF THE BANKRUPT ESTATE OF TRACEY ELISABETH LEAYR

Respondent:

TRACEY ELISABETH LEAYR

File Number:

SYG 2248 of 2011

Judgment of:

Barnes FM

Hearing date:

20 February 2012

Delivered at:

Sydney

Delivered on:

20 February 2012

REPRESENTATION

Solicitors for the Applicant:

Leonard Legal

Respondent:

No appearance

ORDERS BY CONSENT

The respondent and all occupants vacate the property indentified by Folio Identifier A/164003, being the property known as 31 Mill Street East Maitland NSW 2320 (the ‘Property’) within 21 days of the date of this order.
In the event that the respondent and all other occupants fail to give vacant possession of the Property in accordance with Order 2 above, a Writ of Possession issue forthwith.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2248 of 2011

SUTHERLAND AS TRUSTEE OF THE BANKRUPT ESTATE OF TRACEY ELISABETH LEAYR

Applicant

And

TRACEY ELISABETH LEAYR

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 5 October 2011 by Roderick McKay Sutherland as trustee of the bankrupt estate of Tracey Elizabeth Leayr seeking orders from the court pursuant to various sections of the Bankruptcy Act 1966 (Cth), in particular ss.30 and 77, that the respondent bankrupt and other occupants vacate the property known as 31 Mill Street East Maitland or, in the event that she fails to do so, that a writ of possession issue forthwith. I am satisfied the court has power to make such orders (see Pattison v McKinnon [2008] FCA 1624 and Pascoe v Smith [2011] FMCA 528).
I am also satisfied that the respondent, who is not present today, is on notice of the hearing, that she was served with the original application and supporting affidavit and notification of the original hearing date as attested to in the affidavit of Frank Hoare sworn on 13 December 2011. She was also given notice of the adjourned date as attested to in the affidavit of Frank Hoare of 16 February 2012.
I am advised that the respondent has now moved out of the property but the solicitor for the applicant trustee indicated that orders are sought to ensure that no obstacles are encountered to the trustee taking steps to obtain possession of the property and subsequently proceeding to sell it.
The respondent has in fact signed consent orders. In these circumstances and having regard to the evidence before me in relation to contact between the trustee and the bankrupt in an endeavour to obtain possession of the property. I consider it is appropriate to make the orders sought.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: February 2012

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard an application from Roderick McKay Sutherland as the trustee of the bankrupt estate of Tracey Elizabeth Leayr. The application sought an order for Tracey Leayr and other occupants to vacate a property located at 31 Mill Street East, Maitland, NSW. In the event that the occupants failed to vacate, the applicant sought a writ of possession. The respondent, Tracey Leayr, did not appear at the hearing but had given her consent to the orders sought by the applicant. The matter was decided by Federal Magistrate Barnes, who granted the orders by consent.

The legal issues in this case involved the court's jurisdiction to make an order for the respondent to vacate the property and to issue a writ of possession if the order was not complied with. Federal Magistrate Barnes considered the relevant sections of the Bankruptcy Act 1966 (Cth), specifically ss. 30 and 77, and found that the court had the power to make such orders. The court also considered the precedent cases of Pattison v McKinnon [2008] FCA 1624 and Pascoe v Smith [2011] FMCA 528, which supported the court's jurisdiction in this matter.

Federal Magistrate Barnes granted the orders sought by the applicant. The respondent, Tracey Leayr, had signed consent orders, and the court was satisfied that she was on notice of the hearing and the application. The court also took into account that the respondent had already moved out of the property. The orders required the respondent and all other occupants to vacate the property within 21 days of the date of the order. If the respondent and other occupants failed to give vacant possession, a writ of possession would issue forthwith. The court certified that the preceding four paragraphs were a true copy of the reasons for judgment of Barnes FM.

The final orders made by the Federal Magistrates Court of Australia required Tracey Leayr and all other occupants to vacate the property at 31 Mill Street East, Maitland, NSW, within 21 days of the date of the order. If the respondent and other occupants failed to give vacant possession, a writ of possession would issue forthwith. These orders ensured that the trustee could take steps to obtain possession of the property and subsequently proceed to sell it without any obstacles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established