McLean v Quinane [2022] FCA 62

Federal Court of Australia

McLean v Quinane [2022] FCA 62 File number: VID 454 of 2021

Judgment of: SNADEN J

Date of judgment: 3 February 2022

Catchwords: BANKRUPTCY – application for orders for delivery of vacant possession of respondent's property to the applicant – satisfaction that the applicant is entitled to vacant position – consent orders to that effect – orders made

Legislation: Bankruptcy Act 1966 (Cth) s 73

Cases cited: Vince v Sopikiotis (No 2) [2012] FCA 1298

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 7

Date of hearing: 3 February 2022

Counsel for the Applicant: Mr B Petrie

Solicitor for the Applicant: Rigby Cooke Lawyers

Solicitor for the Respondent: Mr T Masterson of Masterson Legal

ORDERS VID 454 of 2021

BETWEEN: NEIL STEWART MCLEAN IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL QUINANE Applicant

AND: PAUL QUINANE Respondent

order made by: SNADEN J DATE OF ORDER: 3 February 2022

THE COURT ORDERS THAT:

1. Pursuant to s 30(1) of the Bankruptcy Act 1966 (Cth) (hereafter, the "Act"), the respondent is required to deliver up vacant possession of the property situated at 5 Morrisseys Road, Ondit, Victoria (more particularly described in certificate of title volume 5977, folio 319—hereafter, "the Property") on or before 3 March 2022. 2. Pursuant to s 30(1) of the Act, in the event that the respondent fails to deliver up vacant possession in accordance with order 1 above, a warrant of possession shall issue forthwith. 3. Pursuant to s 30(1) of the Act: (a) prior to 3 March 2022, the respondent is to remove from the Property all vehicles, rubbish and chattels the ownership in which has not vested in the applicant; (b) in the event that the respondent fails to comply with sub-paragraph (a) above, the applicant may remove and dispose of any such property as the applicant sees fit after the date by which the respondent is required by the Court's orders to deliver up vacant possession of the Property. 4. Pursuant to s 30(1) of the Act: (a) prior to 3 March 2022, the respondent is to provide the applicant (or his agents) with reasonable access to the Property for the purposes of the Trustee effecting a sale of the Property, including any necessary repairs and maintenance, provided that the Trustee gives at least 24 hours' notice (which may be by email or telephone) of requiring such access; and (b) the respondent must execute all documents and do all things as is reasonably necessary to enable the applicant to effect a sale of the Property. 5. The applicant's costs of this application shall be paid in priority from the bankrupt estate of the respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.