Dudley (Trustee) v Zarb [2024] FCA 108

Federal Court of Australia

Dudley (Trustee) v Zarb [2024] FCA 108 File number: WAD 188 of 2023

Judgment of: BANKS-SMITH J

Date of judgment: 20 February 2024

Catchwords: BANKRUPTCY - application by trustee in bankruptcy for orders that the bankrupt vacate and give possession of property and for other ancillary orders - orders made - conditional consent - undertaking given by trustee to defer enforcement for identified period

Legislation: Bankruptcy Act 1966 (Cth) ss 19, 30, 58, 77, 134 Transfer of Land Act 1893 (WA) s 234

Cases cited: Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 Lo Pilato (Trustee), in the matter of Ghougassian (Bankrupt) v Ghougassian (No 3) [2022] FCA 1532

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 28

Date of hearing: 20 February 2024

Counsel for the Applicant: Mr YS Wee

Solicitor for the Applicant: Jackson McDonald

Counsel for the Respondent: Ms KA Parker

Solicitor for the Respondent: Greenstone Legal

ORDERS WAD 188 of 2023

BETWEEN: GREGORY BRUCE DUDLEY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW JOSEPH ZARB Applicant

AND: ANDREW JOSEPH ZARB Respondent

order made by: BANKS-SMITH J DATE OF ORDER: 20 February 2024

THE COURT ORDERS THAT:

1. Pursuant to s 19(1)(f), s 30(1)(b), s 77(e), s 77(g) and s 134(1)(a) of the Bankruptcy Act 1966 (Cth): (a) within 90 days - (i) the respondent deliver up to the applicant vacant possession of the property located at 11 Rollo Court, Kinross, Western Australia, being Lot 2092 on Deposited Plan 26722 and being the whole of the land described in Certificate of Title Volume 2213 Folio 877 (Property); (ii) the respondent deliver up to the applicant all keys to the building and improvements on the Property; (iii) the respondent deliver up to the applicant all manuals, instructions and warranty documents relating to improvements on the Property; and (iv) the respondent remove from the Property all vehicles, rubbish, and chattels which have not vested in the applicant (personal property). (b) In the event that the respondent fails to comply with order 1(a)(iv), the applicant is empowered to remove and dispose of the personal property as he sees fit. 2. The applicant is appointed as trustee for the sale of the Property. 3. The proceeds of sale of the Property be paid to the applicant and applied: (a) first, in payment of the costs and expenses incidental to the sale of the Property; (b) second, to discharge an encumbrance according to its priority; and (c) third, to the bankrupt estate of the respondent. 4. The applicant undertakes that he will not enforce orders 1 to 3 for a period of at least 3 months from the date of these orders. 5. The respondent is to pay the applicant's costs of the 14 December 2023 hearing fixed at $500. 6. The applicant's costs of this application be paid out of the bankrupt estate of the respondent. 7. The parties have liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.