Burnett v Browne (No 4) [2021] FCA 933

Burnett v Browne (No 4) [2021] FCA 933

As the proceeding seeking to annul the bankruptcy order was dismissed, the underlying basis for Mr Cook's undertaking no longer existed. Therefore, it was just and appropriate for the Court to release and discharge Mr Cook from the undertaking and make consequential orders enabling the power of sale to be exercised.

Jurisdiction
Australia
Judgment Date
03 August 2021
Procedural Posture
Practice and Procedure Application / Application for Release and Discharge From Undertaking
Outcome
Application granted. Mr Cook released and discharged from the undertaking. Orders made to enable exercise of power of sale.
Legal Topics
['trustee in Bankruptcy' 'undertakings to Court' 'power of Sale' 'changed Circumstances' 'setting Aside Orders']
['bankruptcy' 'insolvency'] ['trustee in Bankruptcy' 'undertakings to Court' 'power of Sale' 'changed Circumstances' 'setting Aside Orders']

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Procedural Posture

Practice and Procedure Application / Application for Release and Discharge From Undertaking

Legal Issues

  1. 1 ['Whether the trustee in bankruptcy (Mr Cook) should be released and discharged from an undertaking given to the Court not to exercise a power of sale over property.' 'Whether prior consent orders and undertakings should be set aside or varied due to changed circumstances.']

Ratio Decidendi

As the proceeding seeking to annul the bankruptcy order was dismissed, the underlying basis for Mr Cook's undertaking no longer existed. Therefore, it was just and appropriate for the Court to release and discharge Mr Cook from the undertaking and make consequential orders enabling the power of sale to be exercised.

Court Disposition

Application granted. Mr Cook released and discharged from the undertaking. Orders made to enable exercise of power of sale.

Orders

  • ['The third respondent (Mr Cook) is released and discharged from his undertaking given to the Court on 31 August 2020.' "Order 2 of Kerr J's orders made 31 August 2020 be set aside." "Mr Cook is authorised pursuant to s 90-15(1) of Schedule 2 to the Bankruptcy Act 1966 (Cth) to exercise a power of sale of 56 Coleman...