The Trustees of the Property of Kim Robinson, a Bankrupt v Robinson

1. [1]

   HIS HONOUR: By notice of motion filed in this Court on 7 June 2023, the plaintiff in the substantive proceedings sought various orders be made in the proceedings against the defendant (and respondent to the motion).

2. [2]

   By way of background, the plaintiff is the trustees of the defendant's bankrupt estate pursuant to the Bankruptcy Act 1966 (Cth). The bankrupt defendant is the occupier of real property, being Folio Identifier XX/XXXXX and known as XX XXXXXXX Crescent, Merimbula in the State of New South Wales (the property).

3. [3]

   By way of statement of claim filed in this Court on 20 March 2023, the trustees seek orders for vacant possession of the property, together with ancillary orders to facilitate the sale of the property pursuant to the trustees’ powers under s 134 (1)(a) of the Bankruptcy Act. The defendant has not appeared in response to the summons, nor has he filed any defence, nor has he appeared before me today or indeed at any stage of the proceedings.

4. [4]

   The notice of motion as originally filed sought orders which replicate the orders sought in the summons. Application has been made this morning to amend the notice of motion. The amended motion abandons each of the prayers in the original motion and seeks the following orders:

5. [5]

   The amended form of the motion seeks the same result as that sought in the summons, but does so by way of either summary judgment or default judgment rather than the making of the orders in the terms of the relief sought in the summons.

6. [6]

   Thus, the ultimate result sought is essentially the same, but the amended notice of motion seeks to achieve that result by what appears to me to be the more appropriate orders of either summary judgment or default judgment, subject to the requirements of summary judgment or default judgment being satisfied.

Evidence

1. [7]

   The plaintiff on the motion tendered a Court Book which became Exhibit A in the proceedings. Relevantly, that Court Book contained following:

   1. (1)

      the affidavit of Paul John Cook of 14 March 2023, together with annexures and exhibits;

   2. (2)

      the affidavit of Craig Clive Brooks of 3 May 2023;

   3. (3)

      the affidavit of Adam Johnston of 7 June 2023;

   4. (4)

      the affidavit of the plaintiff's solicitor, Jodie Anne Rodrigues of 19 June 2023;

   5. (5)

      a further affidavit of Adam Johnston of 6 July 2023; and

   6. (6)

      a further affidavit of Ms Rodrigues of 13 July 2023, together with relevant exhibits.

Factual findings

1. [8]

   Based on the evidence provided by the plaintiff, I am satisfied of the following.

2. [9]

   On 24 February 2012, the defendant became bankrupt upon a sequestration order made in the Federal Magistrates Court of Australia. On 5 May 2022, the trustees were appointed trustees of the defendant's estate.

3. [10]

   The defendant is the registered proprietor of the property. Pursuant to s 58 of the Bankruptcy Act, the defendant's interest in the property has vested in the trustees. Pursuant to s 116 of the Bankruptcy Act, the property is property that is divisible amongst the creditors of the defendant's bankrupt estate.

4. [11]

   The defendant is in occupation of the property. He is the only known occupier. The source of that knowledge is contained in the trustees' file.

5. [12]

   On 20 March 2023, the trustees filed a statement of claim, claiming relief against the defendant, including orders for vacant possession. The statement of claim was served on the defendant on 13 April 2023.

6. [13]

   As I have indicated, the defendant has not appeared in these proceedings nor filed any defence. Further, the defendant has not engaged with the trustees since these proceedings were commenced, other than to the limited extent of indicating that he had received some material provided by the trustees. The defendant is in breach of his obligation under s 77 of the Bankruptcy Act, as despite being directed to do so, he has not either:

   1. (1)

      completed a statement of affairs despite being directed to do so by his trustee; or

   2. (2)

      vacated the property.

7. [14]

   The evidence establishes that the statement of claim, together with the affidavit of Mr Cook of 14 March 2023 and the associated exhibit, were served on the defendant on 13 April 2023 by being delivered to the defendant personally by a process server on that date.

8. [15]

   In addition to the statement of claim having been personally served on the defendant, the plaintiff's motion was brought to the attention of the defendant by posting it by Express Post on 8 June 2023. Checks of records kept by Australia Post indicate that the motion was delivered to the property on 9 June 2023. As I have already indicated, the defendant is the occupier and indeed sole occupier of that property.

9. [16]

   The evidence further establishes that the then proposed amended motion was brought to the attention of the defendant by emailing it to an email address on 29 June 2023 and again, on 3 July 2023. The email address is one known to be used by the defendant and from which he had previously confirmed receipt of correspondence sent to that address. In addition to being notified of the orders sought by the plaintiff, the defendant has also been notified that costs are claimed and has been notified of the amount of those costs.

Application of the relevant legal principles to the facts

1. [17]

   Section 64 of the Civil Procedure Act 2005 (NSW) provides as follows:

2. [18]

   In the present matter, as I have indicated, the relief sought in the amended motion is for summary judgment or default judgment and effectively replicates the orders that had been sought in the original motion. The amendment does therefore not require the defendant to consider any alternative course of action. The defendant is aware of the nature of and basis for the relief sought by the trustees in the amended motion as it was explained in the original submissions. In those circumstances, it appears to me that the form in which the orders are sought in the amended motion are more appropriate to the circumstances of the case. There is no prejudice to the defendant, and it is consequently appropriate in my view to order that the motion be amended in accordance with the amended notice of motion filed in Court this morning.

3. [19]

   I turn then to the application for summary judgment.

4. [20]

   Rule 10.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is relevantly in the following terms:

5. [21]

   As I have already observed, the statement of claim and related documents were personally served on the defendant on 13 April 2023. The statement of claim was served without a cover sheet in the approved form, as is ordinarily required by r 6.8A of the UCPR. The relevant form is Form 93.

6. [22]

   That form includes the words, “[y]ou may be evicted from your property and the lender may take action to sell your property”. In the present matter, there is no lender and it is the trustees that are taking action to sell the property which is vested in them. Service of the cover sheet in those circumstances would be likely to cause confusion to the extent that it would direct the defendant's attention to a non-existent lender and action by such lender. The purpose of the cover sheet is to: “[d]raw the recipients attention in his or her first language of the significance of the document": see Caro by her Tutor NSW Trustee & Guardian v Caro [2015] NSWSC 1645 at [17].

7. [23]

   In the present case, the defendant was already on notice that the trustees may take action to sell the property. Additionally, the evidence establishes that the defendant has a fair command of English, he having been communicating with the trustees’ office in English without apparent difficulty.

8. [24]

   The Court has the ability to dispense with the rules in particular cases pursuant to s 14 of the Civil Procedure Act. In the present circumstances, I am of the view that it is appropriate to order that the requirement to serve the cover sheet in r 6.8A be dispensed with given, as I have indicated, the cover sheet is inapposite to the present matter and consequently would be likely to cause confusion. The defendant has been provided with sufficient information to understand the claim.

9. [25]

   I turn then to the question of service of the trustees’ motion upon the defendant. I have already indicated, the statement of claim was personally served on the defendant. Relevant to the motion is r 18.5 of the UCPR, which is in the following terms:

10. [26]

    Despite receiving the statement of claim on 13 April 2023, the defendant has still not filed an appearance or defence in the proceedings. While he is consequently not an active party, that is due to his failure to comply with the rules with respect to entering an appearance: see UCPR, r 18B. The rules, consequently, do not require that the motion be served on the defendant. Nonetheless, as I have indicated, the notice of motion was brought to the defendant's attention having been delivered to the property on 9 June 2023. The amended notice of motion has also been brought to the defendant's attention by emailing it to an address known to be used by the defendant.

11. [27]

    Rule 13.1 of the UCPR is in the following terms:

12. [28]

    In Bengour Pty Ltd v Figtree [2020] NSWSC 1143, Wright J conveniently set out the test for summary judgment as follows (at [58]-[61]):

13. [29]

    The evidence relied upon by the plaintiff appears to me to establish a sound foundation for the grant of relief sought. There is, however, no evidence from the plaintiff or a responsible person that, in that person's belief, the defendant has no defence to the claim, as required by r 13.1 of the UCPR. There is, in that regard, a significant body of evidence which would tend to suggest that the plaintiff's claim may be unassailable, but that to my mind is not the same thing. In these circumstances, it is not appropriate to award summary judgment.

14. [30]

    In any event, having regard to the high bar for summary judgment in circumstances where the defendant has taken no action and I am consequently unaware of any matters that he may have raised, it is at least arguable that the more appropriate relief is, subject to the requirements having been established, to award default judgment in favour of the plaintiff.

15. [31]

    I turn then to the question of default judgment.

16. [32]

    Pursuant to r 16.2 of the UCPR, the defendant is in default if the defendant “fails to file a defence within the time limited by rule 14.3(1)”, being the period of “28 days after service on the defendant of the statement of claim”.

17. [33]

    Rule 16.3 of the UCPR is relevantly in the following terms:

18. [34]

    Rule 16.4 of the UCPR is relevantly in the following terms:

19. [35]

    Rule 36.8 of the UCPR is relevantly in the following terms:

20. [36]

    Rule 16.10 of the UCPR is relevantly in the following terms:

21. [37]

    I am satisfied that the trustees have filed an affidavit of service and an affidavit in support for the trustees' motion. The affidavit of Mr Brooks of 3 May 2023 confirms service of the statement of claim on the defendant on 13 April 2023.

22. [38]

    The further affidavit of Mr Johnston of 6 July 2023 identifies that the defendant is the only known occupier of the property and sets out the costs claimed. The affidavit of Mr Brooks identifies that when the statement of claim was served, the defendant was in occupation of the property. The further affidavit of Mr Johnston identifies that no other persons, to the knowledge of the trustees, were in occupation of the property.

23. [39]

    Consequently, I am satisfied that the requirements of rr 16.3, 16.4, and 36.8 of the UCPR have been met. Consequently, the Court is empowered to make the orders sought consistent with r 16.10. Having regard to all of those matters, I am satisfied that it is appropriate that default judgment be given for the plaintiff. I make the following orders: