Trafford-Jones as Trustee of the estate of Luke Robert Barber v Luke Robert Barber
[2023] NSWSC 1469
•29 November 2023
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Trafford-Jones as Trustee of the estate of Luke Robert Barber v Luke Robert Barber [2023] NSWSC 1469 Hearing dates: 29 November 2023 Date of orders: 29 November 2023 Decision date: 29 November 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to Rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) Thyge Howard Trafford-Jones as Trustee of the Estate of Luke Robert Barber be removed as Plaintiff in these proceedings.
2. Pursuant to Rule 6.32(1)(d) of Uniform Civil Procedure Rules 2005 (NSW) Gavin David King as Trustee of the Estate of Luke Robert Barber be added as Plaintiff in these proceedings.
3. Pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Defence filed 30 October 2023 is struck out.
4. Judgment for the plaintiff for possession of the whole of the land comprised in Certificate of Title folio Identifier 51/224725, being the land situated at and known as 5 Faull Street, Parkes NSW 2870.
5. Leave is granted to the plaintiff to issue a writ of possession forthwith, such writ not to be executed before 31 January 2024.
6. The defendant is to pay the plaintiffs costs.
Catchwords: LAND LAW – possession of land – possession sought by bankruptcy trustee from bankrupt – where defence relied on alleged breaches of obligations of trustee – no defence to claim for possession – defence struck-out – judgment for possession
Legislation Cited: Bankruptcy Act 1966 (Cth) ss 58, 129AA, 156A
Uniform Civil Procedure Rules 2005 (NSW) rr 6.29, 6.32, 14.28
Cases Cited: Nil
Texts Cited: Nil
Category: Procedural rulings Parties: Thyge Howard Trafford-Jones as Trustee of the estate of Luke Robert Barber (Plaintiff)
Luke Robert Barber (Defendant)Representation: Counsel:
Solicitors:
M Williams (Plaintiff)
C O’Brien (Defendant)
Grace Lawyers (Plaintiff)
Affordable International Law Firm Pty Ltd (Defendant)
File Number(s): 2023/235918 Publication restriction: Nil
Judgment
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These proceedings commenced on 25 July 2023 by the filing of a statement of claim seeking possession of land known as 5 Faull Street Parkes. The plaintiff at the time of the commencement of the proceedings was the bankruptcy trustee of the defendant. The defendant had presented a debtor's petition on 15 July 2013. On 4 July 2023 the plaintiff became registered as the proprietor of the land in his capacity as the defendant's trustee in bankruptcy. Prior to the commencement of the proceedings on 16 May 2023, a notice to vacate had been issued to the defendant.
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A defence was filed to the statement of claim on 30 October 2023. The defence raises issues that the defendant has with the trustee. It is asserted, for example, that the trustee has acted unreasonably in requiring money to be paid as a result of the defendant's bankruptcy. It is asserted that the trustee would not allow the defendant to repurchase the property. It is asserted that the trustee was the dominant party in negotiations in relation to moneys to be paid and a deed which was drawn up was in that way contrary to the Australian Consumer Law.
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Nothing contained in the defence of 30 October addresses the fact that the plaintiff as the trustee and the registered proprietor is entitled to possession of the land. This Court does not have jurisdiction over bankruptcy trustees. On the making of the sequestration order, s 58 of the Bankruptcy Act 1966 (Cth) provides that the bankrupt’s property vests in the Official Trustee or, here, a registered trustee pursuant to s 156A of that Act.
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The defendant was discharged from his bankruptcy on 16 July 2016. At that time the property in Faull Street had not been dealt with by the Official Trustee, with the result that it continued to remain vested in the Official Trustee for a period of six years after the defendant's discharge, that is, until 15 July 2022.
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On 16 June 2022 the trustee gave notice, as he was entitled to do under s 129AA(4) of the Bankruptcy Act, extending the time for him to deal with the property at Faull Street. That extension notice extended the time for the trustee to deal with the property until 15 July 2025.
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On 4 July 2023 the plaintiff became the registered proprietor of the property in Faull St. A bankruptcy trustee who is the registered proprietor of the land has a right to possession against the defendant.
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On 24 August 2023 in the Federal Court Markovic J made orders substituting Gavin David King as the trustee of the estate of the defendant for the plaintiff. On 13 October 2023 and pursuant to those orders Mr King became the registered proprietor of the land in Faull Street.
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The plaintiff seeks orders that he be removed as a plaintiff and that Mr King be substituted as the plaintiff. Orders effecting that change are consented to by the defendant.
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Mr King now seeks to strike out the defence under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) as not disclosing a defence to the claim for possession of the land.
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Mr O’Brien, the solicitor for the defendant, seeks an adjournment of the proceedings to enable his client to negotiate with the new trustee in relation to outstanding issues arising out of the defendant’s bankruptcy. The plaintiff opposes an adjournment, submitting that any writ issued to support a judgment for possession will not be executed for some time, enabling any negotiations to be held during that period.
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In my opinion, nothing that is contained in the defence filed 30 October 2023 provides a defence to that claim. Rather as noted earlier, the defence raises complaints and issues which the defendant has with the way the trustee, prior to the substitution of Mr King, had acted in relation to the defendant's obligations arising out of his bankruptcy and in relation to the dealing with the land in Faull Street.
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I am further satisfied from the evidence in the affidavit of Gavin David King sworn 27 November 2023 that he, as the new trustee, is now entitled to possession of the land and that there is no defence by the defendant to that claim for possession.
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In those circumstances, where there is no defence to the claim, no purpose will be achieved by adjourning the proceedings. Further, the defence of 30 October 2023 should be struck out.
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A letter was received by my Associate on or about 26 November 2023 from a Kim Paul who I understand to be the defendant's mother. Ms Paul has lived at the premises in Faull Street since she commenced renting them in December 2012. In her letter she sets out the fact that she has continued without fail to pay the rent each week from that time. She also sets out details of health issues which she has and the difficulties that she would have in finding a new property to move to if she was put out of the property.
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Ms Paul appears to have been served as the occupier to the property, as is attested to in the affidavit of Louanna Hill sworn 15 August 2023. That affidavit sets out that the notice to occupier was left on the land on the 27th of July 2023. No application was made by Ms Paul within the time specified in the rules to be joined as a defendant to the proceedings. However, there is nothing in the letter of 26 November 2023 which identifies any right that she might have to remain in possession of the land nor any defence to the plaintiff's claim for possession of the land. She simply identifies matters which go to hardship. Those matters can ultimately only result in some delay before any writ of execution is executed on the land.
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The defendant has agreed to the substitution of Gavin David King as the plaintiff in the proceedings as a result of his appointment and his subsequent registration as the registered proprietor of the land. Accordingly, orders will be made substituting Mr King as the plaintiff for the existing plaintiff. Otherwise, the plaintiff is entitled to judgment for possession of the land.
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Accordingly, I make these orders:
Pursuant to Rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) Thyge Howard Trafford-Jones as Trustee of the Estate of Luke Robert Barber be removed as Plaintiff in these proceedings.
Pursuant to Rule 6.32(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW) Gavin David King as Trustee of the Estate of Luke Robert Barber be added as Plaintiff in these proceedings.
Pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Defence filed 30 October 2023 is struck out.
Judgment for the plaintiff for possession of the whole of the land comprised in Certificate of Title folio Identifier 51/224725, being the land situated at and known as 5 Faull Street, Parkes NSW 2870.
Leave is granted to the plaintiff to issue a writ of possession forthwith, such writ not to be executed before 31 January 2024.
The defendant is to pay the plaintiffs costs.
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Amendments
29 November 2023 - Parties on title page corrected. Typographical error in para [1] amended.
Decision last updated: 29 November 2023
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