Perpetual Trustee Company Limited v Daniel Cuitanovic as trustee of the bankrupt estate of Kosta Dimitrovski [2013] NSWSC 722

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited v Daniel Cuitanovic as trustee of the bankrupt estate of Kosta Dimitrovski [2013] NSWSC 722 Hearing dates: 27 May 2013 Decision date: 27 May 2013 Jurisdiction: Common Law Before: Slattery J Decision: Leave granted to the defendant's trustee in bankruptcy to file a notice of appearance. The trustee substituted for Mr Kosta Dimitrovski as defendant. The defendant, the trustee in bankruptcy, shall give the first plaintiff possession of the mortgaged property. Leave to issue a writ of possession granted to the first plaintiff but stayed for 28 days. Catchwords: PROPERTY - mortgagee seeks judgment for possession of real property - property mortgaged to secure all amounts outstanding on a loan agreement - loan principal not repaid - judgment for possession entered. PROCEDURE - mortgagor made bankrupt before the hearing of the claim for a judgment for possession - whether appropriate in the circumstances for the Court to grant judgment for possession - effect of Bankruptcy Act 1966 s 58(3) and the exception under Bankruptcy Act 1966 s 58(5) for a secured creditor to realize or otherwise deal with his or her security - whether mortgagee seeking a judgment for possession attempts to "realize or otherwise deal with his or her security" - no claim for money judgment made - HELD - seeking a judgment for possession falls within the scope of Bankruptcy Act 1966 s 58(5). PROCEDURE - whether UCPR r 36.8 applies - whether judgment for possession may be given or entered against the defendant - the trustee in bankruptcy - the bankrupt absent during the hearing of the application for judgment for possession - purpose of UCPR r 36.8 discussed - whether the requirement of service on all persons in occupation of the land in UCPR r 36.8 satisfied - affidavit of service read stating that the bankrupt confirmed at the time of service that no other persons were in occupation of the land - HELD: UCPR r 36.8 satisfied and judgment for possession may be entered. Legislation Cited: Uniform Civil Procedure Rules 2005 r 36.8 Bankruptcy Act 1966 s 58 Cases Cited: Hanshaw v National Australia Bank Limited [2012] NSWCA 100 Savieri v Brown [2008] NSWSC 1210 Whitbread v Whitbread [1967] 2 NSWR 393 Category: Interlocutory applications Parties: Perpetual Trustee Company Limited: First Plaintiff Fidante Partners Limited: Second Plaintiff David Cuitanovic as trustee for the bankrupt estate of Kosta Dimitrovski: Defendant Representation: Counsel: V. Bedrossian: Plaintiff Solicitors: D. Swan: Defendant File Number(s): 2011/00217376