IN is} U: IA ) ) SDI ) No. 857 of 1986 ) ) IN_BANKRUPTCY BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA Re: PAUL LEONARD HILL A Bankrupt Ex Parte: H SAY (As trustee of the property of Paul Leonard Hill, a bankrupt) Applicant COURT: NORTHROP J. DATE : 16 MARCH 1988 PLACE: MELBOURNE: EX TEMPORE REASONS FOR JUDGMENT By application dated 11 March 1988 the applicant, Robert Eastaugh Ramsay, as trustee of the bankrupt, Paul Leonard Hill, is seeking orders. The two main orders sought are: (1) that the bankrupt be committed for contempt by reason of his failure to comply with an order of this Court, made on 16 December 1987, to deliver up to the trustee or his agent possession of land at Apolio Bay and that a warrant for his arrest be issued and, (2) that an injunction be granted restraining the bankrupt from entering onto the property at Apollo Bay and from hindering or otherwise interfering with the applicant in relation to a sale of the land by public auction which is due to be held on 2 April 1988. The application is based upon paragraph 78(1)(f) of the Bankruptcy Act 1966 which reads: "78(1) Where it is made to appear to the Court- (A) ceneaae (£) that a bankrupt has, without good cause shown, neglected or failed to comply with an order of the Court or with any other obligation under this Act, the Court may issue a warrant for the arrest of the debtor or bankrupt, as the case may be, and his committal to such gaol as the Court appoints until the Court otherwise orders and may, by the same warrant, order that any property, books, documents, papers and writings in the possession of the debtor or bankrupt be seized and delivered into the custody of such person as the Court appoints." The injunction is sought pursuant to paragraph 30(1)(b) of the Bankruptcy Act. From the material before me I am satisfied that service has been effected on the bankrupt in accordance with rule 176 of the Bankruptcy Rules. The relevant part of the order, which is the basis for the orders sought for committal for contempt of court, was made on 16 December and is as follows; and I quote: "That the bankrupt, Paul Leonard Hill, deliver up to the trustee, Robert Eastaugh Ramsay, or to his duly authorized agent on or before Monday lst February, 1988 possession of the land and buildings erected thereon situate and known as 4 Gallipoli Parade, Apollo Bay, 3. Victoria and being the land more particularly described in Certificate of Title Volume 7946 Folio 124." A large number of affidavits have been filed in support of the application and from those affidavits it appears that on 2 February 1988 agents of the trustee were present at the property at Apollo Bay and, in reality, took possession of the land and the house, went into occupation and changed over the locks to that house and to the workshop at the rear of the house. It is also apparent, From the material before the Court, that the bankrupt has some rather strange ideas and cannot be treated as being a person with ordinary reactions to persons andto the law. It also appears that after 2 February 1988 the bankrupt has re-entered into possession of the land and is in possession at the moment and is interfering with the plans by the trustee to conduct an auction-sale of the land on 2 April 1988. It is noted that in a letter from the solicitors of the trustee to the hankrupt dated 19 February 1988, reference is made to the fact that the trustee, by his agents, took possession of the premises and all other divisible property at the Apollo Bay property on 2 February 1988. The letter then continues: "Your presence at the premises after 2 February 1988, without the permission of the trustee or his duly ......... for your committal to prison". Counsel for the trustee has argued that there has been a failure by the bankrupt to comply with that part of 4. the order of 16 December 1987 that the bankrupt deliver up possession of the land to the trustee. He argues that that order can only have meaning if it is construed to mean: "to give up possession and refrain from retaking possession or to refrain from going into possession of the land without' the permission of the trustee." I reject that contention. It is apparent from the letter from the solicitors of the trustee that they say they have taken possession - and I agree with that opinion - but that thereafter the bankrupt has gone back into possession and has entered upon the land without the permission of the trustee. In those circumstances it is difficult to see how the order has been breached by the bankrupt. It may be that the possession had some degree of force attached to it, but there is no doubt that the trustee took possession and was in possession for some time at least. In these circumstances, and having regard to the nature of the orders sought, the Court should not hold that the bankrupt has committed a contempt of Court by failing to comply with the order made on 16 December 1987. Different considerations apply with respect to the second order sought. There is no doubt that the bankrupt 1s interfering with the rights of the trustee. He is interfering with the plans to hold the auction on 2 April 1988. The Court is aware of the short time between now and 2 April but, having come to the view that the trustee has failed to make out a case for the first order sought, that shortness of time cannot be dealt with effectively except by 5. very speedy action on the part of the trustee. The Court is Prepared to make the order sought in order 2 of the application. My attention has been drawn to the requirements of rule 104 which requires not less than eight days service of an application for a matter being heard in Court. Sub-rule (2) seems to be inapplicable since there is apparently no difficulty in serving the bankrupt in this case. He appears to be a well-known identity in Apollo Bay, living in the house and can be seen there, apparently, on most days. Rule 195(2) enables a Court, where the provisions of the rules have not been complied with, to waive compliance upon such terms as a Court thinks fit. In the present case there is some urgency in the matter, as I have already indicated. This is one step ina series of matters in which the bankrupt has been given notice of applications and has never appeared but has written long and obscure and convoluted letters in response to actions taken by the trustee. In all the circumstances it seems to me that the bankrupt has had ample notice of this particular application for order (2) and that, in all probability, he would not have taken any steps to attend Court or to oppose the making of the order, and that this is a case where it is appropriate that the requirements of the rules be waived as to the not less than eight days service. Accordingly, orders are made. The substantive order will be that the bankrupt be restrained by himself, his servants, agents or howsoever 6. otherwise from (a) entering onto the property situate and known as 4 Gallipoli Parade, Apollo Bay, in the state of Victoria, and (b) from hindering or otherwise interfering with Robert Eastaugh Ramsay, the trustee of the estate of Paul Leonard Hill, or any of his servants or agents during the course of the preparation for sale by public auction of the property or at the public auction of the property or with respect to any subsequent negotations for the sale by private treaty of the property or from hindering or otherwise interfering with the inspection of the property by prospective purchasers. ——— "7 4 1 certify that this ant ss five ( 5) preceding pages are a tric copy ' the { Reasons for Judgment kevsir of tre Honourable Mr. Justice R M Northrep Sharou f LIULON Asun sate Dated: 16 March !188 j EE an