Woodgate v Teese

[2004] FMCA 470

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOODGATE v TEESE [2004] FMCA 470

BANKRUPTCY – Where respondent resisting the applicant obtaining possession of property – where matter to be heard by the Court at a future date – where council has issued trustee with a compliance notice – where respondent to proceeding claims to have complied with council orders and is awaiting council inspection – where trustee as registered proprietor will be potentially liable for any non-compliance – whether trustee should be granted interim access to property to allow them to take necessary action to comply with council notice – whether any order regarding interim access should be postponed until after the inspection.

Applicant: GILES GEOFFREY WOODGATE

Respondent: ANN CAROLYN TEESE

File No: SZ 1297 of 2003

Delivered on: 18 June 2004

Delivered at: Sydney

Hearing date: 18 June 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr B Skinner

Solicitors for the Applicant: Sally Nash & Co

Solicitors for the Respondent: Douglass Knaggs, Solicitor

ORDERS

1. The applicant be granted interim access to the property at 262 Clovelly Road, Clovelly, for the purpose of complying with the notice dated
   8 June 2004 from Randwick Council.

2. The costs of the application be the costs in the administration of the bankrupt's estate.

3. Costs of compliance with council orders be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1297 of 2004

GILES GEOFFREY WOODGATE

Applicant

And

ANN CAROLYN TEESE

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant, who is the trustee of the bankrupt estate of the respondent filed a notice of motion on 15 June 2004 seeking orders including an order that he be granted interim access to a property at 262 Clovelly Road, Clovelly for the purpose of complying with a notice dated 8 June 2004 from Randwick City Council, a copy of which notice was at that time attached to the notice of motion but has now become Exhibit 1 in these proceedings.

2. The applicant is the registered proprietor of the property by virtue of his position as trustee of the respondent's estate.  Under normal circumstances he would be entitled to possession of this property. The respondent has resisted the applicant obtaining possession and the matter is to be heard before me on a date fixed by agreement as

   
   

   24 August 2004.

3. The respondent bankrupt has tendered to the court as Exhibit A, a letter from the council which refers to a telephone conversation between her and the manager of Environmental Health and Building Services on

   
   

   17 June which acknowledge that the respondent had told the writer that the required matters under the council order had almost been fully attended to.  Council suggested that they would inspect the property on 21 June 2004 to ascertain compliance.

4. On the basis of this letter the respondent seeks that I postpone the making of any orders until after the inspection and after advice has been received from the Randwick Council as to whether or not the orders have now been complied with and are withdrawn.

5. The trustee resists this application and asks that I make orders in the form of certain short minutes provided to me at the commencement of the proceedings.  The relevant order there would be that the applicant be granted interim access to the property for the purpose of complying with the notice.

6. I am inclined to accede to the request of the applicant in this matter.  Regrettably, the respondent does not have a particularly good history of compliance with orders.  I think the registered proprietor of the property is entitled to ensure that his property is properly maintained and that it complies with orders of the council in respect of which he is personally liable.  He should not be placed at risk by the respondent allegedly doing work which is then found by the council not to be satisfactory.

7. The orders I propose to make are, therefore:

   (1)The applicant be granted interim access to the property at 262 Clovelly Road, Clovelly, for the purpose of complying with the notice dated 8 June 2004 from Randwick Council.

   (2)The costs of the application be the costs in the administration of the bankrupt's estate.

   (3)Costs of compliance with council orders be reserved.

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

Associate: 

Date: