Wily v Jacobs [2013] FCA 415

Wily v Jacobs [2013] FCA 415

The extraneous items located at both the Lorraine Street and Clarke Street properties were property of the bankrupt divisible amongst creditors under s 116(1) of the Bankruptcy Act 1966 (Cth) and were not excluded under s 116(2). Given the evidence that the items impeded administration and sale of the bankrupt estate and that delay would increase costs to the detriment of creditors and the bankrupt, the Court made the declarations and orders sought and ordered that costs be costs in the bankruptcy.

Jurisdiction
Australia
Judgment Date
24 April 2013
Procedural Posture
Bankruptcy Application for Declaratory Relief by Trustee in Bankruptcy / Final Hearing of Originating Application
Outcome
Application granted; declarations and orders made; costs of the application to be costs in the bankruptcy.
Legal Topics
['property Divisible Amongst Creditors' 'trustee in Bankruptcy Powers' 'excluded Property' "removal and Disposal of Bankrupt's Property"]
['bankruptcy'] ['property Divisible Amongst Creditors' 'trustee in Bankruptcy Powers' 'excluded Property' "removal and Disposal of Bankrupt's Property"]

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Procedural Posture

Bankruptcy Application for Declaratory Relief by Trustee in Bankruptcy / Final Hearing of Originating Application

Legal Issues

  1. 1 ['Whether the household and personal property and other extraneous items of the bankrupt situated at 9/17 Lorraine Street, Peakhurst and 75 Clarke Street, Peakhurst were property of the bankrupt divisible amongst creditors under the Bankruptcy Act 1966 (Cth).' 'Whether the extraneous items were excluded property within the meaning of s 116(2) of the Bankruptcy Act 1966 (Cth).' 'Whether the trustee should be permitted to immediately remove, sell or otherwise dispose of the extraneous items for the benefit of creditors.']

Ratio Decidendi

The extraneous items located at both the Lorraine Street and Clarke Street properties were property of the bankrupt divisible amongst creditors under s 116(1) of the Bankruptcy Act 1966 (Cth) and were not excluded under s 116(2). Given the evidence that the items impeded administration and sale of the bankrupt estate and that delay would increase costs to the detriment of creditors and the bankrupt, the Court made the declarations and orders sought and ordered that costs be costs in the bankruptcy.

Court Disposition

Application granted; declarations and orders made; costs of the application to be costs in the bankruptcy.

Orders

  • ['The items of household and personal property and other extraneous items of the bankrupt situated at 9/17 Lorraine Street, Peakhurst were declared property of the bankrupt divisible amongst creditors pursuant to ss 5, 58, 116(1), 30(1) and 134(4) of the Bankruptcy Act 1966 (Cth).' 'The extraneous items of the...