Vrsecky v Reaper and Anor (No.3)

[2015] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

VRSECKY v REAPER & ANOR (No.3) [2015] FCCA 2807

Catchwords:
BANKRUPTCY – Ruling on form of orders to give effect to earlier substantive judgment.

Applicant: PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BRETT VINCENT REAPER

First Respondent: BRETT VINCENT REAPER

Second Respondent: SHARON FISHER

File Number: MLG 931 of 2013

Judgment of: Judge Burchardt

Hearing date: 10 September 2015

Date of Last Submission: 10 September 2015

Delivered at: Melbourne

Delivered on: 18 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Devany

Solicitors for the Applicant: Madgwicks

The First Respondent: In person

The Second Respondent: In person

ORDERS

THE COURT DECLARES THAT:

1. 50% of the property described in Certificate of Title Volume 10609 Folio 987 and known as 12 The Esplanade, Narre Warren South in the state of Victoria (‘Property’) vests in the Applicant pursuant to sections 58, 115(1) and 116(1) of the Bankruptcy Act 1966 (Cth), as and from the date of the commencement of the bankruptcy of the First Respondent. 

THE COURT ORDERS THAT:

1. Within 90 days of the making of these orders, the Second Respondent has the option to purchase the Applicant’s interest in the Property for $96,000.

2. Failing the Second Respondent executing the option in Order 2 above. Pursuant to section 234D of the Property Law Act 1958 (Vic)

   
   

   as applied by section 79(1) of the Judiciary Act 1903, the land and buildings comprising the Property be sold by the Applicant with all the obligations and privileges pertaining (including signing for and on behalf of the First Respondent in any Contract of Sale of Land and any Property Law Act 1958 form of Transfer and determining the price

   
   

   at which the Property is to be sold).

3. For the Purpose of giving effect to Order 3, the Second Respondent do all such things, acts and deeds and sign all documents to list for sale and sell the Property, and for that purpose, including but not limited

   
   

   to the following:

   (a)agree on a real estate agent(s) to be appointed to facilitate a sale of the Property within 7 days of being requested to do so by the Applicant. With nomination by the Real Estate Institute of Victoria in default of agreement;

   (b)Fix the sale or reserve price at which the Property is to be listed for sale as suggested by the appointed real estate agent at not more than the valuation provided in these proceedings;

   (c)deliver a signed Property Law Act 1958 form of Transfer within 24 hours of being requested to do so by the Applicant;

   (d)maintain the Property in a clean and presentable manner as required for the proper and effective marketing of the Property; and

   (e)allow for an inspection of the Property on 24 hours’ notice of a request made by the Applicant or agent for sale.

4. On default of any matter listed in Order 3 4, the Applicant shall have power to execute any document reasonably required for the purpose of selling the Property on the Second Respondent’s behalf.

5. The First and Second Respondents provide vacant possession of the Property on or before 30 days after the date of failing to execute the option described in Order 2.

6. The Cross-Claims filed on 12 November 2014 and 27 November 2014

   
   

   are dismissed. 

THE COURT NOTES THAT:

A.The issue of costs remains reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 931 of 2013

PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BRETT VINCENT REAPER

Applicant

And

BRETT VINCENT REAPER

First Respondent

SHARON FISHER

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, I told the parties on 10 September 2015 that I would pronounce my orders, which are effectively, to an extent, interim inasmuch as there is still a costs issue outstanding, but I will publish my orders to finally determine the substantive dispute between them in court today, but that it was not necessary for them to attend. 

   
   

   My reasons for what I am going to do are as follows. 

2. On 24 August 2015, I gave judgment.  If one looks at paragraph 107

   
   

   of my reasons for judgment, I then observed:

   “As observed above, it was always the intention of all concerned that Ms Fisher be given an opportunity to purchase out the trustee’s interest in the property.  I am minded to give Ms Fisher 90 days in which to find the relevant funds to do so.  Failing such a payment, the default regime should be that proposed

   
   

   by the applicant trustee.”

3. I then made orders giving, in effect, a timetable for the parties to file proposed minutes of orders consistent with my reasons for judgment.  On the same day, the applicant trustee forwarded draft orders complying with my direction.  Inter alia, the applicant’s draft included proposed costs orders.  This was not appropriate.  The respondents’ still have until 21 September 2015 to file their costs submissions. 

4. On 28 August 2015, I received the respondents’ draft orders.  These were radically different from those proposed by the applicant trustee. 

   
   

   I therefore had to list the matter on 10 September 2015 and the applicant then filed in court a revised minute of orders.  Essentially,

   
   

   the applicant says that the minute provided is consistent with my judgment. 

5. Mr Reaper made submissions in support of the set of orders he was seeking that the Court make.  I have to say that I found his submissions largely unintelligible.  He informed the court that he proposes to appeal and is clearly disaffected by the terms of the judgment.  I regret to say that his submissions were of no assistance to the court at all.

6. I consider that the machinery provisions to give the second respondent an option to buy out the other share of the property are appropriate.  Those orders proposed by the applicant are, in my view, a clear reflection of my judgment, but I am not prepared to make the cost orders sought.  I am likewise not prepared to order the respondents to pay the mortgage pending possible sale.  That matter can be dealt with in final orders in terms of proposed order 10(b), albeit that order 10

   
   

   is not presently being made, when the costs issues and the consequential final orders are made.

7. I therefore pronounce my orders and publish the same.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  13 October 2015