Vines (Trustee), in the matter of Archer (Bankrupt) v Archer

[2024] FedCFamC2G 788

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vines (Trustee), in the matter of Archer (Bankrupt) v Archer [2024] FedCFamC2G 788   

File number(s):

PEG 196 of 2024

Judgment of:

JUDGE STREET

Date of judgment:

23 August 2024

Catchwords:

 BANKRUPTCY – no appearance by the respondent – respondent served with the originating process – property vested in trustee – trustee entitled to relief  

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Judiciary Act 1903 (Cth)

Transfer of Land Act 1893 (WA)

Cases Cited:

Rizeq v Western Australia [2017] HCA 23

Division:

Division 2 General Federal Law

Number of paragraphs:

7

Date of hearing:

 23 August 2024

Place:

Sydney

Solicitor for the Applicant:

Mr P Monaco

Solicitor for the Respondent:

The Applicant did not appear

ORDERS

PEG 196 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF ROBIN ANTHONY JOHN ARCHER

BETWEEN:

MATTHEW DANIEL VINES (AS JOINT AND SEVERAL TRUSTEE OF THE BANKRUPT ESTATE OF ROBIN ANTHONY JOHN ARCHER)

Applicant

AND:

ROBIN ANTHONY JOHN ARCHER

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	23 AUGUST 2024

THE COURT ORDERS THAT:

1.Pursuant to sections 30(1), 77(1)(g) and 129(2) of the Bankruptcy Act 1966 (Cth) (Act), the Respondent and any of his associates or affiliates:

(a)vacate and surrender possession of the premises known as Unit 29, 14 Coralie Court, Armadale in the state of Western Australia, being Lot 29 on Strata Plan 44374 the whole of the Property contained in certificate of title Volume 2548 Folio 336 (Property) to the Applicant within 28 days;

(b)remove from the Property, all vehicles, rubbish and chattels which have not vested in the Applicant (Personal Property) within 28 days;

(c)deliver up all keys for the buildings and improvements on the Property to the Applicant within 28 days.

2.In the event that the Respondent fails to vacate and surrender possession of the Property in accordance with paragraph 1(a) and (c), a Property (Seizure and Delivery) Order pursuant to the Civil Judgments Enforcement Act 2004 (WA) be issued forthwith in favor of the Applicant in respect of the Property.

3.In the event that the Respondent fails to remove the Personal Property within 28 days in accordance with paragraph 1(b), the Applicant may remove and dispose of the Personal Property as he sees fit at the expiration of those 28 days.

4.Pursuant to sections 30(1) and 77(1)(g) of the Act, the Applicant:

(a)have the sole conduct of the sale of the property and be authorised to instruct an agent or auctioneer for the purpose of the sale of the property;

(b)may solely decide whether or not the Property is to be sold by public auction or private treaty;

(c)may solely decide whether or not to set a reserve for any auction of the Property and, if so, at what price; and

(d)be empowered be empowered to sign any contract of sale, transfer and any other documents on behalf of the Respondent necessary to give effect to the sale of the Property, in the event that the Respondent does not sign such documents within such time as required by the Applicant's solicitors.

5.The Respondent do all things as may be reasonably required by the Applicant, his selling agent or his solicitors for the purpose of achieving a sale of the Property including providing access to buildings on the Property and for the purpose of valuation and viewing by potential purchasers.

6.The net proceeds of sale of the Property, after payment of any monies due to any encumbrancer or encumbrancers according to their priorities, the cost of this application and all other costs, charges and expenses of the sale of the Property, be paid to the Applicant.

7.A sealed copy of any orders made be served on the Respondent by:

(a)Affixing to the front door of the Property, an envelope addressed to the Respondent containing a sealed copy of the orders; and

(b)Delivering a copy of the orders addressed to the Respondent and leaving them in the letterbox at Unit 29, 14 Coralie Gardens, Armadale, WA, 6112; and

(c)By email to [email protected]

8.The respondent is to pay the applicant’s costs of these proceedings fixed in the amount of $5,845.00, which costs may be paid out of the estate with the priority to which they are entitled.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are bankruptcy proceedings that commenced on 7 June 2024 by the applicant trustee (“trustee”) of the respondent who is the subject of a bankruptcy order made on 18 March 2024. The trustee, upon the making of the sequestration order, became vested with the property known as Unit 29, 14 Coralie Court, Armadale, in the state of Western Australia being Lot 29 on Strata Plan 44374 the whole of the Property contained in certificate of title Volume 2548 Folio 366 (“the Property”), and pursuant to s 182 of the Transfer of Land Act 1893 (WA), the trustee is now recorded on the title deed.

2. The affidavit of service dated 12 June 2024, clearly identifies service upon the respondent of the originating process and identification of the respondent at that time by the process server.  There have been further orders made by this Court on 14 June 2024 in respect of which a further affidavit of service was filed on 22 August 2024.

3. It is apparent from the evidence before the Court, that the respondent has failed to engage with the trustee, despite efforts made by the trustee to endeavour to get the respondent to engage with these proceedings. It is apparent that the property vested in the trustee has been the subject of ongoing damage and vandalism. 

4. The Court is satisfied that the respondent was aware of these proceedings and the hearing today.

5. The Court is satisfied that the trustee is entitled to the relief that permits the vesting of the property to be the subject of steps to permit the trustee to realise the property for the benefit of the creditors.

6. The Court is satisfied that there is a ground in the enforcement and procedure of this Court that through s 79 of the Judiciary Act 1903 (Cth) picks up the proposed seizure and delivery of the enforcement process under the Civil Judgments Enforcement Act 2004 (WA), see Rizeq v Western Australia [2017] HCA 23 [16] [18].

7. It is for these reasons the Court makes the above orders.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Settled Oral Reasons for Judgment of Judge Street.

Associate:

Dated:       30 August 2024