Re Shields, Geoffrey Neil Keith & Anor, Ex Parte the Official Receiver in Bankruptcy & Ors [1995] FCA 997

Re Shields, Geoffrey Neil Keith & Anor, Ex Parte the Official Receiver in Bankruptcy & Ors [1995] FCA 997

A trustee in bankruptcy is not required to obtain a warrant under s 130 of the Bankruptcy Act before entering property occupied by the bankrupt for the purpose of attaching property if the entry is with the consent (express or by acquiescence) of the bankrupt; the Nissan Patrol station wagon was not divisible property as it was used primarily as a means of transport and its value did not exceed the statutory limit; the s 77A notice should not be set aside as its issue was validly based on other information despite alleged irregularities in the s 81 examination.

Parties
First Applicant: Isaac John Mackay Shields; Second Applicant: Geoffrey Neil Keith Shields; Third Applicant: Norma Rose Shields (aka Norma Rae Shields); First Respondent: The Official Receiver in Bankruptcy; Second Respondent: The Official Trustee in Bankruptcy
Jurisdiction
Australia
Judgment Date
07 December 1995
Procedural Posture
Bankruptcy Application / Judgment on Separate Questions and Application to Set Aside S 77 a Notice
Outcome
Application dismissed. Separate questions answered: (1) Trustee not required to obtain warrant before entering property occupied by bankrupt for attaching property. (2) Nissan Patrol wagon was not divisible property. Application to set aside s 77A notice dismissed. Applicants to pay respondents' costs.
Legal Topics
Trustee Powers of Entry, Divisible Property in Bankruptcy, Bankrupt's Vehicle Exemption, Service and Validity of S 77 a Notice, Right of Access to Property, Effect of United Nations Convention on the Rights of the Child
Bankruptcy Property Law Civil Procedure Trustee Powers of Entry Divisible Property in Bankruptcy Bankrupt's Vehicle Exemption Service and Validity of S 77 a Notice Right of Access to Property +1 more

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Parties

Isaac John Mackay Shields

First Applicant

Geoffrey Neil Keith Shields

Second Applicant

Norma Rose Shields (aka Norma Rae Shields)

Third Applicant

The Official Receiver in Bankruptcy

First Respondent

The Official Trustee in Bankruptcy

Second Respondent

Procedural Posture

Bankruptcy Application / Judgment on Separate Questions and Application to Set Aside S 77 a Notice

Legal Issues

  1. 1 Is a trustee in bankruptcy required to obtain a s 130 warrant before entering property occupied by the bankrupt to attach property?
  2. 2 Is a Nissan Patrol station wagon divisible property of the bankrupt within s 116(2)(ca)?
  3. 3 Should the s 77A notice issued to the applicant be set aside for irregularity following s 81 examination?

Ratio Decidendi

A trustee in bankruptcy is not required to obtain a warrant under s 130 of the Bankruptcy Act before entering property occupied by the bankrupt for the purpose of attaching property if the entry is with the consent (express or by acquiescence) of the bankrupt; the Nissan Patrol station wagon was not divisible property as it was used primarily as a means of transport and its value did not exceed the statutory limit; the s 77A notice should not be set aside as its issue was validly based on other information despite alleged irregularities in the s 81 examination.

Court Disposition

Application dismissed. Separate questions answered: (1) Trustee not required to obtain warrant before entering property occupied by bankrupt for attaching property. (2) Nissan Patrol wagon was not divisible property. Application to set aside s 77A notice dismissed. Applicants to pay respondents' costs.

Orders

  • The Court answers: Trustee not required to obtain a s 130 warrant before entering property occupied by bankrupt for attaching property.
  • The Court answers: Nissan Patrol station wagon is not divisible property of the bankrupts.