Vrsecky v Reaper & Anor

[2015] FCCA 32

FEDERAL CIRCUIT COURT OF AUSTRALIA

VRSECKY v REAPER & ANOR [2015] FCCA 32

Catchwords:
BANKRUPTCY – Trustee seeking orders for partition sale of a property jointly owned by bankrupt and his wife – respondents asserting property wholly or substantially wholly bought with protected funds within meaning on s.116(3) of the Bankruptcy Act 1966 – property bought in 2002 – bankrupt’s protected payments commencing in 2007 – all mortgage payments thereafter made from protected funds – half payments credited to wife – necessity for valuations in 2007 and 2014 in order to value bankrupt’s contribution pursuant to s.116(4) of the Bankruptcy Act 1966.

Legislation:  

Bankruptcy Act 1966, ss.114, 116(3), 116(4), 153B, 178, 179
Statute of Frauds

Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13
Turner v Official Trustee in Bankruptcy [1996] FCA 1074
Re Manivilovski; Ex parte Official Trustee in Bankruptcy (1993) 117 ALR 537
Stankovic v Van Der Velde [2012] FCA 1436

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: 13 November 2014

Date of Last Submission: 13 November 2014

Delivered at: Melbourne

Delivered on: 10 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Ballantyne

Solicitors for the Applicant: Madgwicks

First Respondent: In Person

Second Respondent: In Person

ORDERS

1. The parties do all such things as may be required to obtain a valuation of the property situated at and known as 12 The Esplanade, Narre Warren South, Victoria (“the property”):

   (a)As at May 2007; and

   (b)Currently.

2. The parties appoint a valuer by agreement, and failing agreement appointed by the President of the Real Estate Institute of Victoria, to value the property.

3. The Respondents to provide access to the property upon reasonable notice by the appointed valuer.

4. The parties confer and produce an agreed estimate of the mortgage on the property as at:

   (a)May 2007; and

   (b)Currently

5. The matter be listed for directions as soon as orders 1 to 4 have been complied with.

6. All extant applications be listed for trial before Judge Burchardt at 10.00am on 18 March 2015.

7. The Respondents file and serve any further Affidavits on or before 24 February 2015.

8. The Applicant file and serve any further Affidavits on or before 9 March 2015.

9. Any Affidavits in Reply be filed and served on or before 16 March 2015.

10. Costs be reserved.

11. There be liberty to apply.

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

Introduction

1. By an amended application, which has been the subject of some confusion from time to time, but ultimately filed in court on 13 November 2014, the applicant trustee of the bankrupt estate of the first respondent seeks orders for the partition and sale of the home of the respondents.  The trustee…