Rambaldi (The Trustees of the Estate of John Edward Atkinson, a Bankrupt) v Woodward [2012] NSWSC 434

Supreme Court New South Wales

Medium Neutral Citation: Rambaldi (The Trustees of the Estate of John Edward Atkinson, a Bankrupt) v Woodward [2012] NSWSC 434 Hearing dates: 2 May 2012 Decision date: 11 May 2012 Jurisdiction: Equity Division Before: Davies J Decision: 1. Order that Messrs Gess Michael Rambaldi and Andrew Reginald Yeo trustees (Trustees) both care of Pitcher Partners, Level 19, 15 William Street, Melbourne be appointed trustees of the land described as Folio Identifier 2/301535) (the Property). 2. Order that the Property be vested in the trustees subject to any incumbrances affecting the entirety of the Property but free from incumbrances, if any, affecting any undivided share or shares in the Property to be held by the Trustees upon the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919. 3. Order that the proceeds of sale of the Property (following the deduction of the commission and other expenses of the real estate agent, the legal expenses of the Trustees in respect of the sale the legal expenses of transferring the Property to the purchaser and the costs payable to the Trustees pursuant to Order 4 hereof) be distributed equally to Ms Kim Cherie Woodward and Messrs Gess Michael Rambaldi and Andrew Reginald Yeo jointly as trustees of the estate of John Edward Atkinson, a bankrupt. 4. Order that the trustees are entitled to charge for all reasonable costs and disbursements incurred by them arising from the duty imposed upon them pursuant to these orders up to an amount of $15,000, such costs and disbursements to be deducted from the proceeds of sale. Catchwords: REAL PROPERTY - co-owners - statutory power of sale - application by bankruptcy trustees of one co-owner - property encumbered - whether trustees entitled to sell if no equity remaining in property - whether sale would be outside provisions of Bankruptcy Act and Regulations - whether discretion in court to refuse order for sale Legislation Cited: Bankruptcy Act 1966 (Cth) Bankruptcy Regulations 1996 Conveyancing Act 1919 Cases Cited: Callahan v O'Neill [2002] NSWSC 877 Ngatoa v Ford (1990) 19 NSWLR 72 Re Fettell (1952) 52 SR (NSW) 221 Scott Darren Pascoe as Trustee of the Property of Arthur Linden Dyason, a Bankrupt v Lindsey Jane Dyason [2011] NSWSC 1217 Category: Principal judgment Parties: Gess Michael Rambaldi (Trustee of the Estate of John Edward Atkinson, a Bankrupt) (First Plaintiff) Andrew Reginald Yeo (Trustee of the Estate of John Edward Atkinson, a Bankrupt) (Second Plaintiff) Kim Cherie Woodward (Defendant) Representation: Counsel: JS Tobin (Plaintiffs) In person (Defendant) Solicitors: B2B Lawyers (Plaintiffs) In person (Defendant) File Number(s): 2012/8156