Event and Time
Event Description
The case involves a bankruptcy trustee who has obtained a judgment for possession of land located at 19 Piece Crescent, Balgownie, against a bankrupt individual. The bankrupt has initiated proceedings in the Federal Circuit and Family Court contesting the inclusion of this property as part of the divisible assets among creditors, leading to an application for a stay of the writ of possession pending the resolution of these proceedings.
Application and Claims
The defendant is challenging the possession order on two main bases: 1. The inclusion of the property as divisible under the Bankruptcy Act 1966 (Cth) based on a declaration of trust, which is claimed to exist but is unstamped. 2. An intention to appeal against the judgment that denied the defense due to the striking out of the defendant's arguments, particularly in relation to the equitable interest in the property.
Judicial Decisions
1. The court decided to stay the writ of possession until the close of business on 6 May 2024. 2. The court granted liberty for the parties to apply on two days' notice, should further matters arise.
Dispute Points and Legal Basis
Dispute Points
- Plaintiff (Bankruptcy Trustee):
- Argues that the property is properly included as divisible among creditors under the Bankruptcy Act. - Contends that the declaration of trust is unstamped and thus inadmissible per s 304 of the Duties Act 1997 (NSW).
- Defendant (Bankrupt):
- Claims the property should not be included as divisible due to the existence of a declaration of trust dated 29 May 2008. - Indicates intention to appeal the judgment regarding the existence of an equitable interest in the property. - Argues that without a stay, pursuing an appeal would be rendered futile as it would lead to immediate possession of the property.