Holden v Van Houten [2012] FCA 4

FEDERAL COURT OF AUSTRALIA

Holden v Van Houten [2012] FCA 4 Citation: Holden v Van Houten [2012] FCA 4

Parties: TIMOTHY MARK SHUTTLEWORTH HOLDEN (AS TRUSTEE OF THE PROPERTY OF HALINA VAN HOUTEN) v HALINA VAN HOUTEN

File number: VID 1128 of 2011

Judge: JESSUP J

Date of judgment: 13 January 2012

Catchwords: BANKRUPTCY AND INSOLVENCY – Bankruptcy annulled – Trustee's entitlement to costs, expenses and remuneration.

Legislation: Bankruptcy Act 1966 (Cth), ss 153B, 154

Cases cited: Kyriackou v Shield Mercantile Pty Ltd (No 2) [2004] FCA 1338

Date of hearing: 20 December 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: Ms C Gobbo

Solicitor for the Applicant: Piper Alderman

Counsel for the Respondent: The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1128 of 2011

BETWEEN: TIMOTHY MARK SHUTTLEWORTH HOLDEN (AS TRUSTEE OF THE PROPERTY OF HALINA VAN HOUTEN)

Applicant

AND: HALINA VAN HOUTEN

Respondent

JUDGE: JESSUP J DATE OF ORDER: 13 January 2012 WHERE MADE: MELBOURNE

THE COURT DECLARES THAT:

1. Pursuant to section 154 of the Bankruptcy Act 1966 (Cth), the applicant may apply the property of the respondent still vested in the applicant ("the respondent's property") in payment of the costs, charges and expenses of the administration of the bankruptcy of the respondent, including the remuneration and expenses of the applicant ("the applicant's costs and remuneration"). 2. The applicant's costs and remuneration include – (a) with respect to the period down to, and including the date of, the annulment of the bankruptcy of the respondent, the sum of $17,176.74 plus goods and services tax; (b) with respect to the subsequent period, the costs, charges, expenses and remuneration of and incidental to the recovery of the applicant's costs and remuneration referred to in (a), including the costs of this application, such costs to be taxed if not agreed; and (c) the costs of any such taxation. 3. The respondent's property includes Unit 8, 48 Wilson Street, Brighton, 3178 ("the Wilson Street property"). THE COURT ORDERS THAT: 4. The applicant be appointed trustee for the sale of the Wilson Street property, which is to be sold for such price, in such manner and on such terms as the applicant may in his absolute discretion determine. 5. The respondent give vacant possession of the Wilson Street property to the applicant within 60 days of the date of these orders. 6. The applicant apply the proceeds of the Wilson Street property in the following manner: (a) in payment of all costs, charges and expenses incurred in selling the Wilson Street property; (b) in payment of any mortgage or encumbrance over or in respect of the title to the Wilson Street property, together with any outstanding rates, taxes, charges or other similar outgoings affecting the Wilson Street property; (c) in payment of the applicant's costs of this application on a full indemnity basis; (d) in payment of the applicant's costs and remuneration as defined above, save to the extent covered by (c) of this order; and (e) by returning the net balance to the respondent. 7. The applicant be directed to execute all such documentation required to give effect to the sale of the Wilson Street property, including the contract of sale, the vendor's statement, the appointment of a selling agent and any declaration under the Duties Act 2000 (Vic), for which purpose the applicant is hereby granted a power of attorney. 8. The parties have liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011