Sutherland as trustee of the Bankrupt Estate of Leayr v Leayr
[2012] FMCA 128
•20 February 2012
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
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