Sutherland v Graham - [2009] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUTHERLAND v GRAHAM

[2009] FMCA 795

BANKRUPTCY – Application by trustee in bankruptcy for an order that a bankrupt vacate property.

Bankruptcy Act 1966 (Cth), ss.30, 77
Civil Procedure Act 2005 (NSW), s.104

Federal Magistrates Act 1999 (Cth), s.78

Cook v Tagamilitsky [2001] FMCA 117
Pascoe v Hooper [2009] FMCA 520
Pattison v McKinnon [2008] FCA 1624

Applicant:

RODERICK MACKAY SUTHERLAND AS TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF ANTHONY GRAHAM

Respondent:

ANTHONY ARNOLD GRAHAM

File Number:

SYG1857 of 2009

Judgment of:

Barnes FM

Hearing date:

6 August 2009

Delivered at:

Sydney

Delivered on:

6 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr S Golledge

Solicitors for the Applicant:

Bartier Perry

Respondent:

No appearance

ORDERS

The respondent vacate the property contained in Folio Identifiers 225/14188 and 226/14188 known as 83-85 Renfrew Road, Werri Beach, New South Wales on or before 17 August 2009.
A writ of possession issue in respect of the property referred to in Order 1 above such writ to lie in the Registry until the filing by the applicant, not before 18 August 2009, of an affidavit stating that the respondent has not given vacant possession.
The applicant’s costs of the proceedings be paid out of the property of the bankrupt estate of the respondent bankrupt.
Service of these orders is to be effected by personal service on the respondent.
Liberty to apply on 24 hours notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1857 of 2009

RODERICK MACKAY SUTHERLAND AS TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF ANTHONY GRAHAM

Applicant

And

ANTHONY ARNOLD GRAHAM

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 4 August 2009 by Roderick Mackay Sutherland in his capacity as trustee of the bankrupt estate of Anthony Graham, seeking orders from the Court pursuant to ss.30 and 77(1)(g) of the Bankruptcy Act 1966 (Cth) that the respondent vacate a property known as 83-85 Renfrew Road, Werri Beach, New South Wales. The application originally sought that this occur by 5 August 2009. The order that is sought now is that the respondent vacate the property on or before 17 August 2009.
As clarified in short minutes of order handed up today and in oral submissions, in addition the trustee seeks an order (to address the possibility that the applicant may not vacate the property) that a writ of possession issue in respect of the property to lie in the registry until filing by the applicant, not before 18 August 2009, of an affidavit stating that the respondent has not given vacant possession of the property.
The application is supported by a number of affidavits, including affidavits in relation to service of this application, which first came before the Court on short notice before Smith FM on 4 August 2009. Smith FM made orders that the application be returnable for hearing on 6 August 2009 and that service of the application and supporting affidavits (without annexures) be effected by facsimile transmission to solicitors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sutherland v Graham

Details

AGLC: Sutherland v Graham [2009] FMCA 795
Case: [2009] FMCA 795
Decision Date: 6 August 2009

CaseChat Overview and Summary

In Sutherland v Graham, the applicant, Mr Sutherland, sought relief against the respondent, Mr Graham, who was in possession of a property located at 83-85 Renfrew Road, Werri Beach, New South Wales. The case involved the enforcement of a court judgment debt against the respondent, who had been declared bankrupt, and the subsequent eviction from the property. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the respondent should be ordered to vacate the property and whether a writ of possession should be issued. Additionally, the court had to determine the allocation of costs and the method of service of the orders. The court had to consider the legal framework governing the enforcement of judgments against bankrupt individuals and the specific provisions of the relevant legislation.

The court, after considering the relevant legal principles, concluded that the respondent should be ordered to vacate the property as per the judgment debt. The court also determined that a writ of possession should issue and lie in the Registry until the applicant filed an affidavit confirming that the respondent had not vacated the premises. Furthermore, the court ruled that the costs of the proceedings should be borne by the bankrupt estate of the respondent. The orders were to be served personally on the respondent, and the applicant was granted liberty to apply on 24 hours' notice.

The final orders mandated that the respondent vacate the specified property by a certain date, issued a writ of possession contingent on the applicant's affidavit, directed that the applicant's costs be paid from the respondent's bankrupt estate, specified the method of service, and allowed for applications on short notice. These orders provided a clear pathway for the enforcement of the judgment and ensured that the applicant's rights were protected.

Orders

Orders of the court

The respondent vacate the property contained in Folio Identifiers 225/14188 and 226/14188 known as 83-85 Renfrew Road, Werri Beach, New South Wales on or before 17 August 2009.

A writ of possession issue in respect of the property referred to in Order 1 above such writ to lie in the Registry until the filing by the applicant, not before 18 August 2009, of an affidavit stating that the respondent has not given vacant possession.

The applicant’s costs of the proceedings be paid out of the property of the bankrupt estate of the respondent bankrupt.

Service of these orders is to be effected by personal service on the respondent.

Liberty to apply on 24 hours notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.