FEDERAL COURT OF AUSTRALIA Roufeil v Jarvie [2015] FCA 1516 Citation: Roufeil v Jarvie [2015] FCA 1516 Parties: MARK ROUFEIL v RUSSELL ALAN JARVIE File number: NSD 1192 of 2015 Judge: RARES J Date of judgment: 1 December 2015 Date of hearing: 1 December 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Mr R Marshall Solicitor for the Applicant: Gillis Delaney Lawyers Counsel for the Respondent: The Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1192 of 2015 BETWEEN: MARK ROUFEIL Applicant AND: RUSSELL ALAN JARVIE Respondent JUDGE: RARES J DATE OF ORDER: 1 DECEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. There be judgment in favour of the applicant for possession of the land at 1575 Bells Line of Road, Kurrajong in the State of New South Wales, being all that land in Certificate of Title Folio 3/32296 (land). 2. The applicant have leave to issue a writ of possession for the land. 3. The Registrar forthwith issue a writ of possession in the form attached to these orders. 4. Pursuant to section 30(1)(b) of the Bankruptcy Act 1966 (Cth), within 21 days of service of these orders, the Respondent bankrupt: (a) deliver up to the applicant all keys for gates and improvements on the land; and (b) remove all rubbish and chattels from the land. 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 1192 of 2015 BETWEEN: MARK ROUFEIL Applicant AND: RUSSELL ALAN JARVIE Respondent JUDGE: RARES J DATE OF ORDER: 10 DECEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth), order 1 made on 1 December 2015 be amended as and from the date it was made to read: 1. There be judgment in favour of the applicant for possession of the land at 1575 Bells Line of Road, Kurrajong in the State of New South Wales, being all that land in Certificate of Title Folio 1/32296 (land). 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 1192 of 2015 BETWEEN: MARK ROUFEIL Applicant AND: RUSSELL ALAN JARVIE Respondent JUDGE: RARES J DATE: 1 DECEMBER 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 On 9 May 2014, Mark Roufeil was appointed trustee of the bankrupt estate of Russell Alan Jarvie (the bankrupt). The trustee has sought to administer the estate. He appears not to have received much co-operation, if any, from the bankrupt. The bankrupt has not prepared a report as to his affairs in the 18 months during which he has been bankrupt. 2 One of the assets of the estate is land at Kurrajong Heights, where the bankrupt lives. Shane Dickinson is another person who is, or appears to have been, in occupation of part of the land in a caravan or mobile home. The land appears to have a substantial number of items of personal property, including many vehicles, caravans and other equipment, on it. 3 The trustee wishes to sell the land and requires vacant possession of it. He has reached the point of concluding negotiations with a prospective purchaser of the land at a price that he considers to be appropriate, and wishes to be able now to execute the contract for sale and be in the position where he can deliver vacant possession. 4 The bankrupt wrote to the trustee on 15 October 2015 by fax from "no fixed address NSW 0000", stating that he "will be removing all of my belongings from the Kurrajong Heights property to give vacant possession on the 29th November 2015, you may pick up the key on the morning of the 30th. You can then proceed to auction the property to satisfy my creditors …". I am satisfied that the bankrupt has notice of these proceedings. His fax was a response to the service of the amended application on him. 5 Despite what he wrote on 15 October 2015, the bankrupt has continued to fail to co-operate with the trustee or meaningfully engage with the process of the realisation of his estate for the benefit of his creditors. One of the problems in the trustee obtaining access to the land is that the bankrupt has two apparently mature Doberman dogs who roam inside the fence, the front gate of which is padlocked. Yesterday, a process server, John Vitanza, on the instructions of the solicitor for the trustee, Nicholas Dale, attended the property. Mr Vitanza told Mr Dale that the front gate was still padlocked and that there was a sign on the front gate, "Beware of the Dog". 6 When the matter first came before me, on 11 November 2015, the trustee sought orders for possession of the land and the clearing of items of the personalty from the property. However, the trustee then was unable to demonstrate that Mr Dickinson in his capacity as an occupier, had been given notice of the application for possession. Accordingly, I ordered that the trustee serve Mr Dickinson by a number of means, including by registered post addressed to him at the land. 7 On 12 November 2015, Mr Dale caused his secretary, Susan Thogersen, to send, by registered post, a letter addressed to Mr Dickinson at the land. The letter gave notice of today's hearing and enclosed the amended application for possession of the land, together with the Court orders made on 14 October 2015 and 11 November 2015, the latter making these proceedings returnable today. That letter was delivered on Saturday, 14 November 2015, according to evidence in a report by Australia Post that tracked the registered letter while it remained in its possession. I infer that Mr Dickinson collected the registered letter addressed to him and so has had notice of this application. 8 The matter was called outside the Court this morning. Neither the bankrupt nor Mr Dickinson appeared. The trustee made other attempts to serve Mr Dickinson, including leaving a copy of Mr Dale's letter and attachments on the gate of the Kurrajong land in a weatherproof sleeve addressed, again, to Mr Dickinson. That letter has since been removed from the gate on the evidence now before me. 9 I am satisfied that both the bankrupt and Mr Dickinson have been served with notice of today's hearing. There is no defence to the trustee's application for a writ of possession to issue and for orders requiring the bankrupt to clear the large amount of his personal property including the cars, caravans and other material scattered around the land from it, so that the land may be sold with vacant possession to the intending purchaser with whom the trustee has been negotiating. 10 For these reasons, I will make orders accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 2 February 2016