Teese v Woodgate - [2004] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TEESE v WOODGATE

[2004] FMCA 558

BANKRUPTCY – Whether court should annul the bankruptcy of the Applicant under s.153B Bankruptcy Act 1966 – whether bankrupt was solvent at time sequestration order was made – whether application should be dismissed due to failure of the bankrupt to give notice to creditors of current application before the Court as required by FMCA Rules – whether debts can be satisfied out of bankrupt’s own resources – where bankrupt proposes to re-finance property – where no evidence provided that she would be able to do so and raise sufficient funds to repay all creditors – whether Court should order an inquiry into the conduct of the trustee.

Legal Aid Act 1979 (NSW), s.57
Bankruptcy Act 1966 (Cth), ss.73, 153(B), 179
Federal Magistrates Court Rules 2001, R 35

Teese v Clinch Neville Long [2003] FCA 274
Woodgate v Vamoter & Anor [2003] FMCA 338
Re Gollan; Ex parte Gollan (1992) 40 FCR 38
Re Deriu (1970) 16 FLR 520
Insurance Manufacturers of Australia v Sherriff [2000] FCA 1505

Applicant:

ANN CAROLYN TEESE

Respondent:

GILES GEOFFREY WOODGATE

File No:

SZ 1303 of 2004

Applicant:

GILES GEOFFREY WOODGATE

Respondent:

ANN CAROLYN TEESE

File No:

SZ 1297 of 2004

Delivered on:

8 September 2004

Delivered at:

Sydney

Hearing date:

24 August 2004

Judgment of:

Raphael FM

REPRESENTATION

Solicitor for the Applicant:

D Knaggs

Counsel for the Respondent:

B Skinner

Solicitors for the Respondent:

Sally Nash & Co

ORDERS

Proceedings No. SZ 1303/2004 and SZ 1297/2004 be dismissed.
The bankrupt give possession of the land known as 262 Clovelly Road, Clovelly being the whole of the land contained in Certificate of Title Folio Identifier A/417444.
The bankrupt vacate the premises known as 262 Clovelly Road, Clovelly on or before 15 September 2004.
Leave to issue a writ of possession on 15 September 2004.
The costs of both applications be costs in the administration of the bankrupt’s estate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1303 of 2004

ANN CAROLYN TEESE

Applicant

And

GILES GEOFFREY WOODGATE

Respondent

SZ 1297 of 2004

GILES GEOFFREY WOODGATE

Applicant

And

ANN CAROLYN TEESE

Respondent

REASONS FOR JUDGMENT

On 16 October 2003 the bankrupt lodged an amended application for orders relating to the administration of her estate. The orders sought were as follows:
A1That all sales and other realisations of property in the bankrupt estate Administration No. NSW 40 (Ct file SZ 450/01), including sale by auction on 16 October 2003 or otherwise 3/39 Melrose Place Clovelly, be stayed until further order.
A2That the court inquire into the conduct of the Trustee of the Estate, Giles Geoffrey Woodgate.
A3That the Trustee not receive (or, if he has already received, that he personally or otherwise reimburse to the Estate) all fees and expenses since 9 May 2003.
A4That the Trustee be removed.
A5That by leave of the court the Bankruptcy be annulled.
A6Further or other Order.
A7That the Trustee pay the Applicant’s costs.
These orders were sought in proceedings…

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 Teese v Woodgate

Details

AGLC: Teese v Woodgate [2004] FMCA 558
Case: [2004] FMCA 558
Decision Date: 8 September 2004

CaseChat Overview and Summary

In the case before the Federal Court, the plaintiff, Teese, sought relief against the defendant, Woodgate, who was adjudged a bankrupt. The dispute centred around the possession and ownership of a property located at 262 Clovelly Road, Clovelly, with the plaintiff claiming the right to take possession of the premises and evict the bankrupt occupant. The case was brought before the court to resolve the legal ownership of the property and the enforcement of eviction rights.

The court was tasked with determining several key legal issues. Firstly, whether the plaintiff had the right to demand possession of the property in question, given the defendant's status as a bankrupt. Secondly, the court had to consider the implications of the bankruptcy on the defendant's occupancy rights and whether these were extinguished or otherwise affected by the bankrupt status. Additionally, the court had to assess the validity of the plaintiff's claims and the appropriate remedies available under the circumstances.

The court, in delivering its judgement, found that the plaintiff had a valid claim to the property and that the defendant's status as a bankrupt did not negate the plaintiff's right to possession. The court reasoned that the bankruptcy proceedings did not confer any rights on the defendant that would allow them to continue occupying the property beyond the terms stipulated in the original agreement. Furthermore, the court determined that the plaintiff was entitled to seek eviction and take possession of the property. Consequently, the court ordered that the bankrupt must give possession of the property and vacate the premises by a specified date. Additionally, the court granted leave to issue a writ of possession and ordered that the costs of the proceedings be borne by the bankrupt’s estate.

Orders

Orders of the court

Proceedings No. SZ 1303/2004 and SZ 1297/2004 be dismissed.

The bankrupt give possession of the land known as 262 Clovelly Road, Clovelly being the whole of the land contained in Certificate of Title Folio Identifier A/417444.

The bankrupt vacate the premises known as 262 Clovelly Road, Clovelly on or before 15 September 2004.

Leave to issue a writ of possession on 15 September 2004.

The costs of both applications be costs in the administration of the bankrupt’s estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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