Yeo v Collings - [2012] FMCA 1060

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YEO & ANOR v COLLINGS & ORS

[2012] FMCA 1060

BANKRUPTCY – Application by Trustees for vacate possession and sale of real property –undefended – application acceded to.

Civil Dispute Resolution Act 2011 (Cth), s.6
Bankruptcy Act 1966 (Cth), ss.30, 55, 77(1), 73, 129(2), 153A, 188

Nguyen v Pascoe[2006] FCA 719
Official Receiver v Tregaskis[2006] FMCA 1915
Sistrom v Urh 1992 117 ALR 528

Applicants:

ANDREW REGINALD YEO AND GESS MICHAEL RAMBALDI (AS TRUSTEES OF THE BANKRUPT ESTATE OF SHARON LEE COLLINGS)

First Respondent:

SHARON LEE COLLINGS

Second Respondent:

CRAIG NICHOLAS COLLINGS

Third Respondent:

KEVIN ROBERT CHANDLER

File Number:

MLG 1199 of 2012

Judgment of:

Harnett FM

Hearing date:

7 November 2012

Delivered at:

Melbourne

Delivered on:

7 November 2012

REPRESENTATION

Counsel for the Applicants:

Mr Lhuede

Solicitors for the Applicants:

Piper Alderman

The First Respondent:

No appearance

The Second Respondent:

No appearance

The Third Respondent:

No appearance

THE COURT DECLARES THAT:

The First Respondent was, at the date of her bankruptcy, the beneficial owner, and joint registered proprietor together with the Second and Third Respondents, as to a one third interest in the property situated at 16 Bluegum Drive, Badger Creek in Victoria, more particularly described in Certificate of Title Volume 08346 Folio 187 (Property), which interest vested in the Applicants upon the bankruptcy of the First Respondent.

AND THE COURT ORDERS THAT:

The Respondents give vacant possession of the Property to the Applicants within 60 days of this order.
The Applicants be appointed trustee for the sale of the Property, which is to be sold for such price and in such manner and on such terms as the Applicants may in their absolute discretion determine.
The Applicants be appointed as attorneys for the Second Respondent and the Third Respondent for the purposes of effecting the sale of the Property in accordance with these orders including (without limiting the generality of the foregoing) the contract of sale, vendor’s statement, appointment of selling agent and any declaration under the Duties Act 2000 (Vic) and is granted a power of attorney herein for that purpose.
These orders be produced as sufficient evidence of the Applicants’ appointment as attorneys of the Second Respondent and the Third Respondent, and the Registrar of Titles is directed to accept these orders as evidence of the Applicants’ appointment as attorney.
The Applicants apply the proceeds of the sale of the Property in the following manner:
5.1First, in payment of all costs, charges and expenses in selling the Property;
5.2Second, in payment of any mortgage or encumbrance over or in respect of the title to the Property together with any outstanding rates, taxes, charges or other similar outgoings affecting the Property;
5.3Third, one third of the net balance to the Applicants; and
5.4Fourth, and subject to Order 9 8, two thirds of the net balance to the Second Respondent and the Third Respondent to be divided in equal shares.
The Applicants be empowered to execute a “T1” Transfer…

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 Yeo v Collings

Details

AGLC: YEO AND RAMBALDI (AS TRUSTEES OF THE BANKRUPT ESTATE OF SHARON LEE COLLINGS) v COLLINGS & ORS [2012] FMCA 1060
Case: [2012] FMCA 1060
Decision Date: 7 November 2012

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard an application by Andrew Reginald Yeo and Gess Michael Rambaldi, acting as trustees of the bankrupt estate of Sharon Lee Collings, against Sharon Collings, Craig Nicholas Collings, and Kevin Robert Chandler. The applicants sought orders for the sale of a residential property located at 16 Bluegum Drive, Badger Creek, Victoria, and for the respondents to vacate the property. The property was jointly owned by the first and second respondents and the third respondent, with the first respondent declaring bankruptcy on 8 February 2012. Upon her bankruptcy, the applicants, as trustees, became entitled to a one-third interest in the property.

The legal issues before the court included whether the applicants had the authority to seek the orders for sale and vacant possession and whether the respondents had been afforded procedural fairness. The court examined sections 30, 77(1)(e), 77(1)(g), and 129(2) of the Bankruptcy Act 1966 (Cth) and relevant case law to determine its jurisdiction and the appropriate exercise of its powers.

The Federal Magistrates Court found that it had the jurisdiction to grant the orders sought by the applicants. The court noted that upon the first respondent's bankruptcy, the joint tenancy in the property was severed, and the applicants became equitable tenants in common with the other co-owners. The court was satisfied that the respondents had been given adequate notice and multiple opportunities to respond to the applicants' proposals for the sale of the property or to purchase the applicants' interest. Given the lack of response and the potential for further delay and costs to the bankrupt estate, the court acceded to the applicants' requests.

The court ordered that the respondents give vacant possession of the property to the applicants within 60 days, appointed the applicants as trustees for the sale of the property, and directed the applicants to apply the proceeds of the sale in a specified manner. Additionally, the court ordered the respondents to pay the applicants' costs of the proceeding. The decision was made in the interests of the creditors of the first respondent's bankrupt estate and to ensure efficient administration of the estate.

Orders