Colbran v Acquaro, in the matter of Acquaro (a bankrupt) [2023] FCA 1522

Federal Court of Australia

Colbran v Acquaro, in the matter of Acquaro (a bankrupt) [2023] FCA 1522 File number(s): VID 671 of 2023

Judgment of: O'CALLAGHAN J

Date of judgment: 4 December 2023

Catchwords: BANKRUPTCY – application under s 30 of the Bankruptcy Act 1966 (Cth) by trustee in bankruptcy that respondent bankrupt vacate and give possession of property – where respondent bankrupt has not sought to annul or set aside bankruptcy – orders made

Legislation: Bankruptcy Act 1966 (Cth) ss 19, 30, 58, 77, 116, 134)

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 35

Date of hearing: 4 December 2023

Counsel for the Applicant: Mr J Kohn

Solicitor for the Applicant: Dimos Lawyers

Solicitor for the Respondent: Mr I Hone of Hone Legal

ORDERS VID 671 of 2023 IN THE MATTER OF ERRICO JOHN ACQUARO (A BANKRUPT) BETWEEN: JONATHON KINGSLEY COLBRAN (AS TRUSTEE OF THE BANKRUPT ESTATE OF ERRICO JOHN ACQUARO (A BANKRUPT) Applicant

AND: ERRICO JOHN ACQUARO (A BANKRUPT) Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 4 DECEMBER 2023

THE COURT ORDERS THAT:

1. Pursuant to s 134(1)(a) of the Bankruptcy Act 1966 (Cth) (the Act), the Applicant exercise a power of sale of the land comprised in Certificate of Title Volume 10123 Folio 997 known as 26 Henry Road, Bunyip, Victoria, 3815 (the Property). 2. The Respondent and any other occupants of the Property vacate the Property within 90 days after the date of this Order. 3. The Respondent deliver up to the Applicant the duplicate Certificate of Title of the Property, if any, within 90 days after the date of this Order. 4. The Respondent deliver up all keys for all buildings and improvements on the Property to the Applicant within 90 days after the date of this Order. 5. 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 the Applicant files an affidavit within 120 days, deposing that: (a) the Respondent has not complied with all of Order 2, and (b) the Applicant does not have possession of the Property. 6. The affidavit referred to in Order 5 may be made by the Applicant's solicitors. 7. The Respondent and any occupier of the Property respectively must remove from the Property all vehicles, rubbish and chattels which have not vested in the Applicant in his capacity as trustee of the bankrupt estate of the Plaintiff (Personal Property) within 90 days after the date of this Order. 8. If the Respondent fails to comply with Order 7, the Applicant is empowered to remove and dispose of any and all Personal Property on the Property as he sees fit. 9. The Applicant be at liberty to sell the Property and any Personal Property and receive the net proceeds of sale in order to satisfy the debts of the Respondent. 10. The Applicant: (a) has the sole conduct of the sale of the Property and any Personal Property not removed and is authorised to instruct an agent or an auctioneer for that purpose; (b) is solely to decide whether the Property and any Personal Property not removed is to be sold by public auction or private treaty; and (c) is solely to decide whether or not to set a reserve for any auction of the Property and any Personal Property not removed and, if so, at what price. 11. The Respondent do all things as may be reasonably required by the Applicant or their selling agent or their solicitor for the purpose of achieving a sale of the Property, including providing access to the buildings on the Property and for the purpose of valuation and viewing by potential purchasers and that the Property not be made available for inspection by potential purchasers until 90 days after the date of this Order. 12. The net proceeds of the sale of the Property and any personal property not removed, after payment of any monies due to any encumbrance or encumbrancers according to their priorities, the cost of these proceedings, and all other costs, charges and expenses of the sale of the Property and any Personal Property not removed, be paid to the Bankrupt Estate. 13. The Applicant forthwith serve a copy of this Order on the following persons: (a) Westpac Banking Corporation. (b) APS Benefits Group Ltd. (c) Scottish Pacific Business Finance Pty Ltd. (d) Karen Jean Trummer. 14. Liberty to apply on three days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure A WARRANT OF POSSESSION Federal Court of Australia No VID 671/2023 District Registry: Victoria Division: General Rule 53.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) Form 35B In the matter of Errico John Acquaro (a bankrupt) Jonathon Kingsley Colbran as trustees of the bankrupt estate of Errico John Acquaro (a bankrupt) Applicant Errico John Acquaro (a bankrupt) Respondent TO THE SHERIFF: In respect of the order dated 4 December 2023 by which it was adjudged that the Applicant recover possession of the land described in the schedule, enter the land and cause the Applicant to have possession of it, and indorse on the warrant immediately after you have performed all your obligations under it a statement of the date, time and place at which you have executed or attempted to execute the warrant and the results of the execution and send a copy of the statement to the Applicant. SCHEDULE 26 Henry Road, Bunyip, Victoria, 3815 (Property) being the whole of the property contained in Certificate of Title Volume 10123 Folio 997. Issued: By the Court REGISTRAR Issued at the request of the Applicant. The last known address of the Respondent is 26 Henry Road, Bunyip, Victoria, 3815.