Taylor v Walters - [2021] FCCA 713

FEDERAL CIRCUIT COURT OF AUSTRALIA
Taylor v Walters [2021] FCCA 713

File number(s): SYG 38 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 9 April 2021

Catchwords: BANKRUPTCY – application by trustee in bankruptcy for an order granting vacant possession of property occupied by the bankrupt.

Legislation: Bankruptcy Act 1966 (Cth) ss 30, 58, 77(1)(g)

Cases cited: Prentice v Fortune & Anor [2014] FCCA 2199

Number of paragraphs: 17

Date of hearing: 9 April 2021

Place: Sydney

Solicitor for the Applicant: Mr P Fagan of Le Page Lawyers, by telephone

Respondent: No appearance by the Respondent
ORDERS

SYG 38 of 2021

IN THE MATTER OF JULIE MAREE WALTERS

BETWEEN:
JOSHUA PHILIP TAYLOR

Applicant

AND:
JULIE MAREE WALTERS

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

9 APRIL 2021

THE COURT ORDERS THAT:
1.Pursuant to sections 30 and 77(1)(g) of the Bankruptcy Act 1966 (Cth), by 14 May 2021 the respondent deliver up vacant possession of the premises known as 8/9-15 Blackfriars Street, Chippendale in the state of New South Wales, being the property comprised in Folio Identifier 8/SP18962 (Property).
2.In the event that the respondent fails to give up vacant possession of the Property in accordance with order 1, a writ of possession be issued forthwith in favour of the applicant.
3.By 14 May 2021 the respondent remove from the Property all vehicles, rubbish and chattels which have not vested in the applicant (personal property).
4.In the event that the respondent fails to comply with order 3, the applicant may remove and dispose of the personal property as he sees fit after 14 May 2021.
5.A sealed copy of these orders be served on the respondent by 16 April 2021 as follows:
(a)by sending the orders by ordinary prepaid post addressed to the respondent at 8/9-15 Blackfriars Street, Chippendale, NSW2008, being the respondent’s last known address;
(b)by placing a copy of the orders in a sealed envelope under the door of 8/9-15 Blackfriars Street, Chippendale, NSW2008; and
(c)by affixing a copy of these orders to the front door at 8/9-15 Blackfriars Street Chippendale, NSW2008 utilising an adhesive to prevent the order being torn off the door.

6.The applicant’s costs of this application set in the amount of $4886.11 be paid in priority from the bankrupt estate of the respondent.
7.If the respondent believes she has grounds for setting aside any of these orders, or if the respondent believes she is or she will be in a position to pay to the applicant such amounts as will be sufficient to enable her to be discharged from her bankruptcy, the respondent must by 7 May 2021 send a communication to the court registry and to the applicant in which she requests that this matter be listed before Judge Manousaridis.
8.The parties otherwise have liberty to apply in relation to any question that may arise in relation to the interpretation or implementation of these orders.

THE COURT NOTES THAT:
These orders have been amended pursuant to r…

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 Taylor v Walters

Details

AGLC: Taylor v Walters [2021] FCCA 713
Case: [2021] FCCA 713
Decision Date: 9 April 2021

CaseChat Overview and Summary

In *Taylor v Walters*, heard before Manousaridis J in the Supreme Court of New South Wales, the applicant sought to set aside a statutory demand issued by the respondent. The dispute arose from an alleged debt owed by the applicant to the respondent, which the applicant claimed was disputed on substantial grounds.

The primary legal issue before the Court was whether the applicant had established sufficient grounds to set aside the statutory demand. This required the Court to consider whether the applicant had demonstrated a genuine dispute about the existence of the debt, or whether there were other substantial grounds for setting aside the demand, as contemplated by the relevant provisions of the *Corporations Act 2001* (Cth).

Manousaridis J applied the principles established in cases concerning statutory demands, particularly the test for determining whether a dispute is genuine. His Honour considered the evidence presented by both parties regarding the alleged debt and the applicant's contentions. The Court found that the applicant had failed to demonstrate a genuine dispute about the existence of the debt, nor had any other substantial grounds for setting aside the demand been established. Consequently, the application to set aside the statutory demand was dismissed.

Orders