Federal Court of Australia
Federal Court of Australia
Pekar v Jess (Trustee) [2020] FCA 1250 File number: VID 81 of 2017
Judgment of: MOSHINSKY J
Date of judgment: 28 August 2020
Catchwords: BANKRUPTCY – application to vacate a stay of an order for possession of the home of the appellant and her husband (a former bankrupt) – where the order staying the order for possession had been made by consent on the basis of an agreement between the bankrupt and his trustee in bankruptcy – where that agreement had been set aside in a separate proceeding – where the premise of the stay order no longer existed – whether any other basis existed to maintain the stay of the order for possession
Legislation: Bankruptcy Act 1966 (Cth), ss 19, 30, 120, 121, 140, Sch 2, ss 45-1 and 90-15 Insolvency Practice Rules (Bankruptcy) 2016 (Cth), r 42-40
Cases cited: Young v Thomson (2017) 253 FCR 191
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 59
Date of hearing: 22 July 2020
Counsel for the Appellant: Mr V Murano
Counsel for the Respondents: Mr MJ Galvin QC
Solicitor for the Respondents: Rothwell Lawyers
ORDERS VID 81 of 2017
BETWEEN: IDA PEKAR Appellant
AND: MATTHEW JAMES JESS AND MATTHEW KUCIANSKI AS JOINT TRUSTEES IN BANKRUPTCY FOR THE ESTATE OF FIMA PEKAR Respondents
order made by: MOSHINSKY J DATE OF ORDER: 28 AUGUST 2020
THE COURT ORDERS THAT:
1. Paragraph 1 of the orders made on 18 July 2017 (whereby it was ordered by consent that paragraphs 4(3) and (4) of the orders made on 30 May 2017 be stayed) be vacated. 2. In relation to the costs of the interlocutory application dated 23 September 2019: (a) Subject to paragraph (b), there be no order as to costs. (b) If either party seeks a different costs order, the party may file and serve a written submission (of no more than two pages) within seven days of this order. In that event, the other party may within a further seven days serve a responding written submission (of no more than two pages), and the issue of costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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