Re Hill, P.L. v. Ex parte Ramsay, R.E. [1988] FCA 248

Re Hill, P.L. v. Ex parte Ramsay, R.E. [1988] FCA 248

The bankrupt was not shown to have committed contempt by failing to comply with the 16 December 1987 order because the trustee's agents had in fact taken possession of the property on 2 February 1988, so the order to deliver up possession had not been breached merely because the bankrupt later re-entered. However, the bankrupt was interfering with the trustee's rights and with the planned auction of the property, and in the urgent circumstances the Court waived the eight-day service requirement and granted the injunction.

Jurisdiction
Australia
Judgment Date
16 March 1988
Procedural Posture
Bankruptcy Application / Ex Tempore Reasons for Judgment on Application for Committal for Contempt and Injunction
Outcome
Application for committal for contempt refused; injunction granted restraining the bankrupt from entering the property and interfering with the trustee's sale process.
Legal Topics
['failure to Comply With Bankruptcy Court Order' 'committal of Bankrupt' "injunction Restraining Interference With Trustee's Sale of Bankrupt Property" 'service and Waiver of Bankruptcy Rules Requirements']
['bankruptcy' 'contempt of Court'] ['failure to Comply With Bankruptcy Court Order' 'committal of Bankrupt' "injunction Restraining Interference With Trustee's Sale of Bankrupt Property" 'service and Waiver of Bankruptcy Rules Requirements']

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Procedural Posture

Bankruptcy Application / Ex Tempore Reasons for Judgment on Application for Committal for Contempt and Injunction

Legal Issues

  1. 1 ['Whether the bankrupt should be committed for contempt or arrested under paragraph 78(1)(f) of the Bankruptcy Act 1966 for failing to comply with the order made on 16 December 1987 to deliver up possession of the Apollo Bay property.' "Whether the bankrupt should be restrained from entering the Apollo Bay property and from hindering or interfering with the trustee's proposed sale by public auction." 'Whether the requirements for not less than eight days service should be waived.']

Ratio Decidendi

The bankrupt was not shown to have committed contempt by failing to comply with the 16 December 1987 order because the trustee's agents had in fact taken possession of the property on 2 February 1988, so the order to deliver up possession had not been breached merely because the bankrupt later re-entered. However, the bankrupt was interfering with the trustee's rights and with the planned auction of the property, and in the urgent circumstances the Court waived the eight-day service requirement and granted the injunction.

Court Disposition

Application for committal for contempt refused; injunction granted restraining the bankrupt from entering the property and interfering with the trustee's sale process.

Orders

  • ['The bankrupt be restrained by himself, his servants, agents or howsoever otherwise from entering onto the property situate and known as 4 Gallipoli Parade, Apollo Bay, in the state of Victoria.' 'The bankrupt be restrained by himself, his servants, agents or howsoever otherwise from hindering or otherwise...