The Trustee of the Property of Currey (A Bankrupt) v Currey
[2017] FCCA 2692
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE TRUSTEE OF THE PROPERTY OF CURREY (A BANKRUPT) & ANOR v CURREY & ANOR | [2017] FCCA 2692 |
| Catchwords: BANKRUPTCY – Application for orders for vacant possession – application for orders to make and file statements of affairs. |
| Legislation: Bankruptcy Act 1966, ss.30(1)(b), 54, 58, 77(1), 116 |
| Cases cited: Aravanis & Anor v Daisley [2015] FCCA 3473 Commonwealth Bank of Australia v Currey [2016] FCCA 124 Pattison v McKinnon [2008] FCA 1624 |
| First Applicant: | THE TRUSTEE OF THE PROPERTY OF GLENYS ANNE CURREY (A BANKRUPT) |
| Second Applicant: | THE TRUSTEE OF THE PROPERTY OF KEVYN GRANTLEY CURREY (A BANKRUPT) |
| First Respondent: | GLENYS ANNE CURREY |
| Second Respondent: | KEVYN GRANTLEY CURREY |
| File Number: | BRG 407 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Solicitors for the Applicants: | RBG Lawyers |
| The Respondents appeared in person |
ORDERS
The first and second respondents deliver up to the applicants vacant possession of the property, described as Lot 2 on Survey Plan 196368, Title Reference 50716816 situated at 177 Currey Road, Wongawallan, Queensland 4210 by 17 November 2017.
The first and second respondents deliver up the keys for all buildings and improvements on the Wongawallan property to the first and second applicants by 17 November 2017.
A warrant of possession issue in respect of the Wongawallan property, such warrant to lie in the Registry until the filing by the first and second applicants, not before 20 November 2017, of an affidavit stating that the first and second respondents have not given vacant possession of the Wongawallan property.
The first and second respondents remove from the Wongawallan property all personal property, being vehicles, rubbish and other chattels which do not vest in the applicants by 17 November 2017.
In the event that the first and second respondents fail to remove the their personal property in accordance with order 4 above, the applicants are empowered to remove and dispose of the personal property as they see fit.
By 17 November 2017, the first respondent is directed to file with the Official Receiver a statement of her affairs and furnish a copy of the statement to the first applicant.
By 17 November 2017, the second respondent is directed to file with the Official Receiver a statement of his affairs and furnish a copy of the statement to the second applicant.
The first and second respondents pay to the first and second applicants the costs of and incidental to this application in a case to be taxed in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.
The parties have leave to apply on two days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRG 407 of 2017
| The Trustee Of The Property Of Glenys Anne Currey (a Bankrupt) |
First Applicant
| The Trustee Of The Property Of KEVYN GRANTLEY Currey (a Bankrupt) |
Second Applicant
And
| Glenys Anne Currey |
First Respondent
| Kevyn Grantley Currey |
Second Respondent
REASONS FOR JUDGMENT
This is an application by a trustee in bankruptcy for the bankrupts to deliver up to him vacant possession of certain real property occupied by them pursuant to s.30(1)(b) of the Bankruptcy Act 1966. He also seeks an order obliging the respondents to file their statements of affairs and furnish a copy to him as required by s.54 of the Act.
Although there are two applicants in the heading to the application the trustee of the bankrupt estate of each of the respondents is the same person. I will refer to him as the applicant throughout these reasons. It was unnecessary for him to be named twice in the title to the proceedings.
The respondents oppose the application but for the reasons that I have given below, there opposition must fail.
The applicant pursues these proceedings against the following background facts:
a)On 10 December, 2014 the respondents became bankrupt by a reason of sequestration orders made against each of them. The applicant is the trustee of the bankrupt estate of each of the respondents.
b)On 12 December, 2014 the applicants posted by registered post a letter to each of the respondents enclosing a blank statement of affairs and requesting that it be completed by each of them and returned within 14 days.
c)On 23 December, 2014 the respondents filed an application for review of the sequestration order made on 10 December, 2014.
d)On 6 January, 2015 the applicant posted by registered post to the respondents a letter enclosing a copy of the previous letter sent on 12 December, 2014 and advising the respondents that they were in breach of the Bankruptcy Act. The letter requested that they provide their statement of affairs within seven days.
e)On 2 March, 2015 the first and second respondents were served with:
i)a notice pursuant to s.77CA of the Bankruptcy Act requiring them to file a statement of affairs;
ii)a bankruptcy by sequestration order instruction sheet; and
iii)a blank form 3 statement of affairs.
f)On 17 April, 2015 the applicants were registered on the title to a parcel of real property located at Lot 2 177 Currey Road Wongawallan, Queensland.
g)On 27 January, 2016 I dismissed the respondents application for review of the sequestration orders made against them and confirmed those sequestration orders: Commonwealth Bank of Australia v Currey [2016] FCCA 124
h)On 12 October, 2016 the applicants solicitors sent by post and email to the respondents, notices to vacate the Wongawallan property, a copy of the sequestration orders and a copy of the order dismissing the respondents application for review.
i)On 18 October, 2016 copies of the notice to vacate, sequestration orders and the orders dismissing the application for review of the sequestration orders were served personally on the respondents by giving them to Clayton Currey, the respondent’s son.
j)On the same day, 18 October, 2016, Robin Bourne a solicitor of Nobel Law emailed the applicant’s solicitors advising that the respondents had provided a copy of the notice to vacate to her and that she then acted for the respondents.
k)On 18 November, 2016 the applicant’s solicitor sent an email to the respondents’ solicitor reminding the respondents that they were required to vacate the Wongawallan property by 17 November, 2016. By a return email of the same date, the respondents’ solicitor confirmed that the respondents intended to remain in the Wongawallan property.
l)On 23 December, 2016, the applicant’s solicitor sent an email to the respondents’ solicitor requesting them to file their statement of affairs. The email was sent to the respondents’ solicitor after a teleconference in which the applicant’s solicitor verbally made the same request to the respondents’ solicitor.
m)On 28 February, 2017 the applicant’s solicitor sent another notice to vacate the Wongawallan property to the respondents’ solicitor.
n)On 7 March, 2017 the applicant’s solicitor gave notice to the respondents’ solicitor that the applicants intended to apply for vacant possession of the Wongawallan property.
Statutory Framework
Section 54 of the Bankruptcy Act provides:
54 Bankrupt’s statement of affairs
(1) Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:
(a) make out and file with the Official Receiver a statement of his or her affairs; and
(b) furnish a copy of the statement to the trustee.
Further, relevantly s.77(1) of the Bankruptcy Act provides:
77 Duties of bankrupt as to discovery etc. of property
(1) A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:
…
(ba) give such information about any of the bankrupt’s conduct and examinable affairs as the trustee requires; and
…
(e) execute such instruments and generally do all such acts and things in relation to his or her property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; and
…
(g) aid to the utmost of his or her power in the administration of his or her estate.
Those sections of the Act are sufficient authority for the Court to make an order for the delivery up of vacant possession of real property held by a bankrupt but which has vested in the bankrupt’s trustee in bankruptcy and for the delivery of a statement of affairs: Aravanis & Anor v Daisley [2015] FCCA 3473. Section 30 of the Bankruptcy Act, when read together with ss.77(1)(e) and 77(1)(g) also provides sufficient authority for the Court to order that a respondent vacate real property that has vested in his or her trustee in bankruptcy: Pattison v McKinnon [2008] FCA 1624.
On 25 May, 2017 the respondents filed a notice of appearance in these proceedings by their solicitor. On 3 August, 2017 the respondent’s solicitor filed a notice stating grounds of opposition to the present application. That notice specified the following three grounds:
1. The application is bad in law.
2. The Applicant has failed to make out a case, in law, for the relief sought.
3. The affidavit evidence filed by the Applicant, insofar as it is admissible, is insufficient in law to make out a case for the relief sought.
However, on the material relied upon by the applicant, he is entitled, at least prima facie, to the orders that he seeks. It is clear that by the operation of s.58 and s.116 of the Bankruptcy Act, the respondent’s interest in the Wongawallan property vested in him as the trustee of their estates in bankruptcy upon them acquiring their interests in that property. He is obliged to obtain possession of that property so as to discharge his duties under the Bankruptcy Act. He is also entitled to the order that the respondents make and lodge a statement of affairs.
On 7 August, 2017 I made an order setting the present application for hearing on 27 October, 2017. I also made orders for the delivery by the respondents of affidavits of evidence in chief to support their grounds of opposition. I made a direction for the applicant to file any further evidence he wished to file once the respondents had filed their material.
Soon after those orders were made, the respondent’s solicitor withdrew from the record. The respondents have represented themselves ever since.
On 11 September, 2017, both respondents filed an affidavit. The affidavits are in identical terms. The content of each affidavit is as follows:
1. The Commonwealth Bank of Australia is a Business House that has to abide by the Corporations Act 2001, S1041H - The ASIC Act 2001- S12DA and the Australian Consumer Law S18.
2. “A person must not, in trade or commerce, engage in conduct in relation to a financial service that is misleading or deceptive or likely to mislead or deceive”. GGC 1
3. Silence as False & Misleading Conduct – Engaging in conduct includes refusing or refraining from doing an act and “where there is a reasonable expectation that if a relevant fact exists it will be disclosed”, GGC 2
4. I have proof the Commonwealth Bank of Australia has misrepresented the Terms of Reference of our contract.
5. The Terms of Reference was not explained properly to us by the Commonwealth Bank of Australia.
6. The Commonwealth Bank of Australia has the responsibility to explain the Terms of Reference to upgrade or change the terms.
7. The Commonwealth Bank of Australia altered the contract without our approval and knowledge.
8. The Commonwealth Bank of Australia has breached the Contract, which is misrepresentation, misinformation, misdirection, False and Misleading Conduct and perjury.
9. We want the contract re-done using Common Law, in the Private.
10. The original contract is not valid.
11. We know what we did wrong and we want the Commonwealth Bank of Australia to correct the fault.
12. If the Commonwealth Bank of Australia is not prepared to correct the contract, we are prepared to prosecute the wrong doer parties ..
13. We are being sponsored for equity of the loan, provided the contract is in Common Law.
14. We have the funds, but we cannot pay the Commonwealth Bank of Australia until such times the Commonwealth Bank of Australia guarantees the Bill of Lading is issued in the CORRECTPARSE-SYNTAX-GRAMMAR .
It is tolerably clear from the content of the two affidavits filed by the respondents that they wished to agitate a claim against the Commonwealth Bank of Australia (the creditor responsible for the creditors petition upon which the sequestration orders were made) alleging that the Bank had engaged in misleading and deceptive conduct contrary to the Australian Consumer Law and which, presumably, gave the respondents a right to relief against the Bank. It seems also clear that they wished to raise against the Bank other claims of misrepresentation and that the Bank had acted without authority in changing, amending or altering the terms of the agreement that the respondents apprehended they had with the Bank.
The concluding words of the affidavit, however, were a portent of things to come.
On 24 October, 2017 the respondent’s filed two documents, one by each respondent. Save for their names, the documents were in the same form. For the purposes of illustration, I have used the form of the document that contains Mr Currey’s name. It is as follows:
FOR THE CLAIM OF THE CONTRACT – DUTY IS WITH THE CLAIM BY THIS WITNESS: Kevin-Grantley: Currey. ~27-~OCTOBER-~2017.
(FORM 20)
(ORDER 14 Rule 2)
FOR THE DATE-~27-~ OCTOBER-~2017 OF THIS WITNESS: Kevin-Grantley: Currey WITH THE LOCATION OF THE ~177-~CURREY-ROAD, -~ WONGAWALLAN, -~ ‘QUEENSLAND’, -~ 4210, IS WITH THESE CLAIMS BEFORE THIS FEDERAL – CIRCUIT – COURT OF AN AUSTRALIA-COURT IN THE DRY-DOCK BY THIS: Kevin-Grantley: Currey.
1. FOR THIS WITNESS: Kevin-Grantley: Currey’s KNOWLEDGE OF THE CORRECT-SENTENCE-STRUCTURE-COMMUNICATION-PARSE-SYNTAX-GRAMMAR IS WITH THIS DAMAGE-CLAIM OF THE ORIGINAL-FILING-SYNTAX-FRAUD and: TESTIMONY-FRAUD BY THE COMMONWEALTH BANK OF AUSTRALIA and: “OTHERS”, WITH THE FIRST-COURT-HEARING AGAINST THE CASE-FILE: ‘No.9397. Of 2013’ IN THE SUPREME-COURT OF THE ‘QUEENSLAND’-TERRITORY WITH THIS CLAIMANT: Kevin-Grantley: Currey.
2. FOR THIS WITNESS’S KNOWLEDGE OF THE FACTS IS WITH THIS DAMAGES-CLAIM OF THE PERJURY, MIS-APPROPRIATION, and: FRAUD-PARSE-SYNTAX-GRAMMAR-DOCUMENTS WITHIN THE ORIGINAL-FILING-SYNTAX-FRAUD-DOCUMENTS BY THE ‘COMMONWEALTH BANK OF AUSTRALIA’, ‘QUEENSLAND’-STATE’S-VASSALEES, and: “OTHERS”.
Also on 24 October, 2017 each respondent filed an affidavit. The affidavits are also in identical terms. The terms of each affidavit are as follows:
1. I do not believe I am Bankrupt.
2. I have never been shown any valid proof of Bankruptcy founded on forensic fact.
3. I have not received valid confirmation of Bankruptcy in forensic fact format that proves any Bankruptcy exists. (KGC 1)
4. I request the Commonwealth Bank of Australia show me forensic validation of their claim.
5. I am not seeking legal help as I have not received valid proof of being Bankrupt.
6. I have evidence of mine and all other legal teams are guilty of Perjury and Misappropriation.
7. I have evidence of wrongs being committed as I find nobody stopping and correcting the wrongs being committed against me.
8. I have a WRIT OF DE NOVO prepared.
9. I have an AMICUS CURIAE prepared.
10. The WRIT OF DE NOVO and the AMICUS CURIAE are linked to a brand new case of a QUI TAM LAWSUIT.
11. The QUI TAM LAWSUIT is in motion.
12. The QUI TAM LAWSUIT is against anybody who is trying to reduce me to beyond recovery.
13. The QUI TAM LAWSUIT includes all lawyers and judges.
When the matter came on for hearing before me, the respondents represented themselves. At the commencement of the hearing, Mrs Currey wished to hand me a document which she described as an “Amicus Curiae”.
Curious as to the nature of the document, I invited Mrs Currey to provide me with a copy of the document. Although she was anxious to ensure that I had the original which was affixed with some stamps, in the end I declined to take the original but received the copy. That document is annexed to these reasons and marked “A”. To reproduce it otherwise in these reasons would do it no justice.
Notwithstanding the assistance that the respondents argue I should get from this document, unfortunately I do not understand any of it. Neither Mrs Currey nor Mr Currey could explain it to me in any comprehensible way, although each seemed to have complete confidence that they were explaining their case to me perfectly clearly.
Judge Lloyd-Jones was confronted with a similar document in Wollongong City Council v Falamaki [2009] FMCA 1204. At [13] – [19] his Honour reviewed the facts of that case against the commonly understood function of amicus curiae in the courts of this country. Curiously, the application before Judge Lloyd-Jones was for a person who identified himself as Judge: David-Wynn: Miller to appear as a lay advocate for one of the parties in that case, as well as to give evidence as an expert in respect of “syntax fraud” and finally as that of an amicus curiae in assisting the Court to understand the offence of “syntax fraud”. His Honour declined to permit “Judge: David-Wynn: Miller” to appear as amicus curiae.
While there is no similar application before me, the respondents’ argument is that by reason of “syntax fraud”, the respondents have some type of defence to these proceedings. The document that I have admitted as exhibit 1 (the “amicus curiae”) bears the name of “FEDERAL-PLENIPOTENTIARY-JUDGE: David-Wynn: Miller”. That appears to be the same name of the person to whom Judge Lloyd-Jones refers in his reasons in Falamaki.
“Judge: David-Wynn: Miller” has in another case attempted to explain a theory that appears to be a creation by him that Mrs Currey referred to before me as “CORRECT-SENTENCE-STRUCTURE-COMMUNICATION-PARSE-SYNTAX-GRAMMAR”. In Wollongong City Council v Falamaki [2010] NSWLEC 66, Craig J had the benefit of Judge: David-Wynn: Miller appear before him to explain his theory in support of Dr Falamaki’s case. After setting the transcript of some exchanges with Judge: David-Wynn: Miller and recording that lengthy submission had been made by him, Craig J recorded that:
37 Regrettably, I did not find the submissions helpful in addressing Dr Falamaki’s claim.
Similarly, I do not find the submissions made by Mr and Mrs Currey based upon what they described as “CORRECT-SENTENCE-STRUCTURE-COMMUNICATION-PARSE-SYNTAX-GRAMMAR” helpful. Indeed, I did not find them comprehensible.
The applicant is entitled to the orders that he seeks. The respondents should pay his costs to be taxed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2017.
Date: 3 November, 2017
Annexure “A”
2
5
2