Nelson (Trustee), in the matter of Warawita (Bankrupt) v Warawita [2022] FCA 1281

Federal Court of Australia

Nelson (Trustee), in the matter of Warawita (Bankrupt) v Warawita [2022] FCA 1281 File number(s): VID 184 of 2022

Judgment of: HESPE J

Date of judgment: 28 October 2022

Catchwords: BANKRUPTCY AND INSOLVENCY – where Applicant appointed as the trustee of the Respondent's bankrupt estate – where residential property forms part of the property of the bankrupt – whether orders should be made for vacant possession of the Respondent's residential property pursuant to Bankruptcy Act 1966 (Cth) ss 30, 77

Legislation: Bankruptcy Act 1966 (Cth) ss 30, 58, 77, 109, 134

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 64

Date of hearing: 20 October 2022

Counsel for the Applicant: Ms V Holt

Solicitor for the Applicant: Spoke Legal

Counsel for the Respondent: The Respondent appeared in person

ORDERS VID 184 of 2022 IN THE MATTER OF THE BANKRUPT ESTATE OF LALAN WARAWITA

BETWEEN: SIMON PATRICK NELSON (IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF LALAN WARAWITA, A BANKRUPT) Applicant

AND: LALAN WARAWITA Respondent

order made by: HESPE J DATE OF ORDER: 28 October 2022

THE COURT ORDERS THAT:

1. The application dated 11 April 2022 be allowed. 2. The Respondent, within 14 days of the date of these orders: (a) deliver up to the Applicant vacant possession of 2 Jodie Close, Doveton, Victoria, 3177, being that parcel of land more particularly described in Certificate of Title Volume 09683 Folio 500 (the Doveton Property); (b) deliver up to the Applicant any documents in relation to the Doveton Property including any documents of title, rates notices, charges, policies or certificates of insurance, leases or other documents evidencing any encumbrance on or improvements to the Doveton Property (Documents), and all keys to the Doveton Property that are in the Respondent's possession, custody or control; and (c) remove from the Doveton Property all vehicles, rubbish and chattels which have not vested in the Applicant (personal property). 3. In the event that the Respondent fails to deliver up vacant possession of the Doveton Property, or the keys to the Doveton Property and any Documents related thereto in accordance with paragraphs 2(a) or 2(b) of this order, a warrant of possession for the Doveton Property shall issue forthwith in favour of the Applicant and for this purpose an affidavit sworn by the Applicant or his legal representative deposing to the non-compliance with this order shall, if filed, be sufficient proof to enable the issue of the warrant of possession. 4. In the event that the Respondent fails, refuses or neglects to comply with paragraph 2(c) of this order, the Applicant may remove and dispose of any personal property as may remain at the Doveton Property as he sees fit and at the cost of the Respondent without being under any obligation to account for such personal property (the costs of doing so being deductable from the proceeds of sale of the Doveton Property). 5. Pursuant to ss 134(1)(a), 134(1)(o) and 134(3) of the Bankruptcy Act 1966 (Cth) (the Act), the Applicant is authorised to sell the Doveton Property forthwith. 6. The Respondent do all things and sign any documents to effect the sale of the Doveton Property, within such time as may reasonably be nominated by the Applicant. 7. Pursuant to s 134(1)(k) of the Act, in the event that the Respondent fails to comply with paragraph 6 of this order, the Applicant is authorised and empowered to do all things and sign all documents required to effect the sale of the Doveton Property on behalf of the Respondent, including signing any contract of sale, discharge of mortgage, authority, transfer of land or other document. 8. Pursuant to s 134 of the Act, and without limiting the powers of the Applicant as trustee pursuant to that section, the Applicant may: (a) engage agents to provide services and expertise reasonably necessary or appropriate to assist in the preparation for sale and selling of the Doveton Property, including but not limited to real estate agents, valuers, cleaners, tradespeople, accountants, solicitors, conveyancers and auctioneers; (b) sell the Doveton Property and have sole conduct of the sale of the Doveton Property; (c) sell the Doveton Property by private treaty, auction or tender; (d) if the Doveton Property is sold by auction, decide whether or not to set a reserve price and, if so decided, the reserve price; (e) deal with the goods and chattels deemed abandoned at the Doveton Property at his sole discretion; and (f) execute all documents, and take all necessary or appropriate steps on behalf of the Respondent in relation to the sale of the Doveton Property, including but not limited to the execution of any: (i) agreement with a real estate agent or agents, valuers, cleaners, tradespeople, solicitors, conveyancers, auctioneers or other agent; (ii) contract of sale; (iii) nomination form; (iv) document under the Transfer of Land Act 1958 (Vic); (v) notice relating to the contract of sale; and (vi) other document relating to the sale of the Doveton Property. 9. The Applicant apply the proceeds of sale of the Doveton Property in accordance with s 109(1) of the Act, including by applying the proceeds of sale as follows: (a) first, in discharge of any valid encumbrance over the title to the Doveton Property; (b) second, in payment of any outstanding rates, taxes, charges, owners corporation fees or other outgoings affecting the Doveton Property or deriving from or associated with the ownership or maintenance of the Doveton Property up to the time of settlement on the sale; (c) third, in payment of all selling costs including agent's commission, advertising and marketing expenses, conveyancing and legal costs associated with the sale; (d) fourth, in repayment of the costs of removal and/or disposal of any personal property remaining at the Doveton Property in non-compliance with paragraph 2(c) of this order; and (e) fifth, all remaining proceeds are to be paid to the Applicant as trustee of the Respondent's bankrupt estate. 10. The Applicant's costs of the application are deemed to be proper costs of the administration of the Respondent's bankruptcy. 11. There be liberty to apply on three days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.