Wily v Jacobs - [2013] FCA 415

FEDERAL COURT OF AUSTRALIA
Wily v Jacobs [2013] FCA 415

Citation: Wily v Jacobs [2013] FCA 415

Parties: ANDREW HUGH JENNER WILY v KEVIN ROY JACOBS

File number: NSD 207 of 2013

Judge: JACOBSON J

Date of judgment: 24 April 2013

Catchwords: BANKRUPTCY – application for declaratory relief by trustee in bankruptcy – whether certain property of the bankrupt is properly divisible amongst creditors under Bankruptcy Act 1966 (Cth)

Legislation: Bankruptcy Act 1966 (Cth), ss 58, 116
Local Government Act 1993 (NSW), s 124

Date of hearing: 24 April 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 13

Solicitor for the Applicant: Mr Williams of McCormick Williams

Solicitor for the Respondent: The respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 207 of 2013

BETWEEN:
ANDREW HUGH JENNER WILY
Applicant

AND:
KEVIN ROY JACOBS
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

24 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.The items of household and personal property and other extraneous items (collectively ‘Extraneous Items’) of the bankrupt situated at 9/17 Lorraine Street, Peakhurst be declared property of the bankrupt divisible amongst creditors pursuant to ss 5, 58, 116(1), 30(1) and 134(4) of the Bankruptcy Act 1966 (Cth) (the Act).
2.The Extraneous Items of the bankrupt situated at 75 Clarke Street, Peakhurst are property of the bankrupt divisible amongst creditors pursuant to ss 5, 58, 116(1), 30(1) and 134(4) of the Act.

THE COURT ORDERS THAT:
3.The Trustee may immediately remove by whatever means the Extraneous Items of the bankrupt situated at 9/17 Lorraine Street, Peakhurst and sell or otherwise dispose of same in whatever manner the Trustee deems fit for the benefit of the creditors of the bankrupt.
4.The Trustee may immediately remove by whatever means the Extraneous Items of the bankrupt situated at 75 Clarke Street, Peakhurst and sell or otherwise dispose of same in whatever manner the Trustee deems fit for the benefit of the creditors of the bankrupt.
5.Any and all costs incurred by the Trustee in respect of the removal and sale or disposal of the Extraneous Items referred to at the properties identified in Orders 3 and 4 above are normal disbursements incurred by the Trustee in the course of him undertaking his duties as the Trustee of the bankrupt.
6.The costs of the application are costs in the bankruptcy.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 207 of 2013

BETWEEN:
ANDREW HUGH JENNER WILY
Applicant

AND:
KEVIN ROY JACOBS
Respondent

JUDGE:

JACOBSON J

DATE:

24 APRIL 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application by Mr Andrew Hugh Jenner Wily, as the trustee in bankruptcy for Mr Kevin Roy Jacobs, for declarations and orders set out in the originating application filed on 13 February 2013. Mr Wily seeks declarations that items of household and personal property and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wily v Jacobs

Details

AGLC: Wily v Jacobs [2013] FCA 415
Case: [2013] FCA 415
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Wily v Jacobs [2013] FCA 415 dealt with an application by Andrew Hugh Jenner Wily, the trustee in bankruptcy of Kevin Roy Jacobs, for declaratory relief regarding certain property of the bankrupt. Mr Wily sought declarations that specific items of household and personal property, referred to as extraneous items, located at two properties in Peakhurst be declared divisible amongst creditors under the Bankruptcy Act 1966 (Cth). The legal issues before the court centred on whether the extraneous items situated at the properties were properly divisible amongst creditors, as well as whether they were excluded under the specific provisions of the Act.

The court found that the extraneous items located at both the Lorraine Street and Clarke Street properties were indeed property of the bankrupt and divisible amongst creditors pursuant to sections 58 and 116(1) of the Bankruptcy Act. Justice Jacobson was satisfied that the property was not excluded under sections 116(2)(b) and 116(2)(ba) of the Act. The court acknowledged Mr Wily's concerns about the potential for further litigation and the resulting costs, which could diminish the estate and negatively impact creditors and Mr Jacobs. Based on these findings, the court granted the declarations and orders as sought by Mr Wily and determined that the costs of the application be treated as costs in the bankruptcy.

The final orders of the court declared the extraneous items at both properties as divisible amongst creditors and allowed the trustee to remove and sell or dispose of the items in a manner deemed fit for the benefit of the creditors. Additionally, the court ordered that any costs incurred by the trustee in relation to the removal and sale or disposal of the items be considered normal disbursements in the course of their duties as trustee.

Orders