Burnett v Browne (No 4) [2021] FCA 933

Federal Court of Australia

Burnett v Browne (No 4) [2021] FCA 933 File number: TAD 25 of 2020

Judgment of: O'CALLAGHAN J

Date of judgment: 3 August 2021

Catchwords: PRACTICE AND PROCEDURE – application by trustee in bankruptcy to be released and discharged from an undertaking made to the Court – application granted due to changed circumstances

Legislation: Bankruptcy Act 1966 (Cth) ss 109(1)(a), 134(1)(a), Schedule 2 s 90-15(1)

Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1980) 44 FLR 88

Division: General Division

Registry: Tasmania

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 7

Date of hearing: 3 August 2021

Counsel for the Applicant: The Applicant did not appear

Solicitor for the Third Respondent: Mr M Rapley of Butler McIntyre & Butler

ORDERS TAD 25 of 2020

BETWEEN: GAIL LOUISE BURNETT Applicant

AND: ROLAND ALEXANDER BROWNE First Respondent

ANTHONY FAIRLEA FITZGERALD Second Respondent

PAUL JOHN COOK Third Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 3 AUGUST 2021

THE COURT ORDERS THAT:

1. The third respondent (Mr Cook) be released and discharged from the undertaking that he gave to the Court on 31 August 2020. 2. Order 2 of the orders made by Kerr J on 31 August 2020 be set aside. 3. In lieu of that order, order that Mr Cook is authorised, pursuant to s 90-15(1) of Schedule 2 to the Bankruptcy Act 1966 (Cth) (the Act) to exercise a power of sale of the land known as and situated at 56 Coleman Street, Moonah in Tasmania, more specifically described in certificate of title Volume 55148 Folio 24 (the Property) pursuant to s 134(1)(a) of the Act as follows: (a) Ms Gail Burnett provide Mr Cook with vacant possession of the Property within 28 days of the date of these orders. (b) In the event that Ms Burnett fails to give up possession of the Property in accordance with order 3(a), a writ of possession issue forthwith in favour of Mr Cook. (c) Ms Burnett remove from the Property all vehicles, rubbish and chattels which have not vested in Mr Cook (Personal Property) within 28 days of the date of these orders. (d) In the event that Ms Burnett fails to comply with order 3(c), Mr Cook may remove and dispose of the Personal Property as he sees fit after further 7 days have expired. (e) Ms Burnett surrender to Mr Cook the duplicate Certificate of Title of the Property, if any, within 14 days of these orders. (f) Mr Cook: (i) have conduct of the sale of the Property; and (ii) have authority to execute all documents required to effect the sale of the Property (including, without limitation, the contract of sale, vendor's statement, transfer of land documents and appointment of selling agent). (g) Ms Burnett execute all such documents and do all such things as are necessary to enable Mr Cook to effect the sale of the Property failing which a Registrar of the Court is authorised to do so. 4. The first and second respondents' costs of the application, except the costs referred to in the orders made on 29 July 2021, be taxed and paid out of the applicant's bankrupt estate in accordance with s 109(1)(a) of the Act. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.