Ruhe (Trustee) v Australian Securities and Investments Commission [2022] FCA 354

Federal Court of Australia

Ruhe (Trustee) v Australian Securities and Investments Commission [2022] FCA 354 File number(s): VID 102 of 2021

Judgment of: O'CALLAGHAN J

Date of judgment: 31 March 2022

Catchwords: BANKRUPTCY – application under ss 30(1)(b), 30(5)(a) and 77(1)(g) of the Bankruptcy Act 1966 (Cth) by a trustee in bankruptcy that the bankrupts vacate and give possession of property – where trustee made previous requests for bankrupts to vacate property – orders made

Legislation: Bankruptcy Act 1966 (Cth) ss 30, 30(1), 30(1)(b), 30(5), 30(5)(a), 77(1)(g)

Cases cited: Trustee of the Property of Brian John Byrne, a Bankrupt v Byrne [2020] FCA 1532 Weston & Szepesvary (No 2) [2015] FCCA 3517 White & Lynn [1999] FCA 841

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 20

Date of hearing: 31 March 2022

Counsel for the Applicant: Mr DC Harrison

Solicitor for the Applicant: Cornwalls

Counsel for the Respondent: The Respondent did not appear

ORDERS VID 102 of 2021

BETWEEN: ALICE FAY RUHE AND KENNETH STEWART SELLERS (AS TRUSTEES OF THE BANKRUPT ESTATES OF RODERIC WILLIAM POWER AND MARGARET CHRISTINE POWER) Applicant

AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 31 MARCH 2022

THE COURT ORDERS THAT:

1. Pursuant to ss 30(1)(b), 30(5)(a) and 77(1)(g) of the Bankruptcy Act 1966 (Cth), within 21 days, Roderic William Power (Mr Power) and Margaret Christine Power (Mrs Power) must: (a) vacate the property identified in Certificate of Title Volume 82 Folio 21204, more particularly known as 29 Lakeview Street, Toukley in the State of New South Wales (Property), and (b) give possession of the Property to Alice Fay Ruhe (Ms Ruhe) in her capacity as liquidator of Rodmarg Pty Ltd (in liquidation) (ACN 160 970 865) (RodMarg) and RodMargy Pty Ltd (in liquidation) (ACN 160 971 086) (RodMargy), and/or as receiver of the Coastal Accommodation Unit Trust and the Power Secure Self-Managed Super Fund. 2. A warrant of possession be issued forthwith substantially in the form of Annexure A to this order, such warrant to lie in the Registry and not to issue unless Ms Ruhe files an affidavit within 35 days, deposing that: (a) Mr Power and Mrs Power have not complied with all of Order 1, and (b) Ms Ruhe does not have possession of the Property. 3. The affidavit referred to in Order 2 may be made by Ms Ruhe's solicitors. 4. On Ms Ruhe or the Sheriff taking possession of the Property, Mr Power and Mrs Power, their servants and agents be restrained from: (a) entering on or remaining on the Property, (b) going within 30 metres of the Property, and (c) hindering the sale of the Property by Ms Ruhe. 5. Mr Power and Mrs Power must remove from the Property all vehicles, rubbish and chattels which have not vested in the applicants in their capacity as trustees of the bankrupt estates of Mr Power and Mrs Power, or vested in Ms Ruhe (Personal Property). 6. If Mr Power and Mrs Power fail to comply with Order 5, the applicants and Ms Ruhe are empowered to remove and dispose of any and all Personal Property on the Property as they see fit. 7. Ms Ruhe be at liberty to sell the Property and Ms Ruhe and the applicants be at liberty to sell any Personal Property and receive the net proceeds of sale for order to satisfy the debts of Mr Power and Mrs Power as well as RodMarg and RodMargy. 8. Ms Ruhe's costs of selling the Property be paid from the sale proceeds of the Property and be costs in the liquidation of Rodmarg and RodMargy. 9. The costs of Ms Ruhe and the applicants of removing, disposing and selling any Personal Property be paid from the sale proceeds of the Personal Property, and be paid the bankrupt estates of Mr Power and Mrs Power, and be costs in the liquidation of Rodmarg and Rodmargy. 10. The costs of the application are proper costs of the liquidation of Rodmarg and Rodmargy. 11. Mr Power and Mrs Power have liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.