Pekar v Jess (Trustee) [2020] FCA 1250

Pekar v Jess (Trustee) [2020] FCA 1250

The consent order staying the order for possession was made on the premise that the parties had entered into the Agreement. Because that Agreement had been terminated, the premise of the stay no longer existed and the stay should be vacated. The funding proposals advanced by the Pekars did not provide another basis to maintain the stay because the Trustees had not agreed to them, the Court should not impose that method of administration on the Trustees, and it was not clear that the proposed amounts would be sufficient to meet creditor claims and trustee remuneration and expenses.

Jurisdiction
Australia
Judgment Date
28 August 2020
Procedural Posture
Bankruptcy Interlocutory Application / Application to Vacate Consent Stay Order
Outcome
Application granted; paragraph 1 of the orders made on 18 July 2017 was vacated, with no order as to costs subject to any written submissions seeking a different costs order.
Legal Topics
['stay of Order for Possession' 'trustee in Bankruptcy' 'void Transfer of Property' 'administration of Bankrupt Estate' 'consent Orders']
['bankruptcy' 'insolvency' 'civil Procedure'] ['stay of Order for Possession' 'trustee in Bankruptcy' 'void Transfer of Property' 'administration of Bankrupt Estate' 'consent Orders']

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Procedural Posture

Bankruptcy Interlocutory Application / Application to Vacate Consent Stay Order

Legal Issues

  1. 1 ['Whether paragraph 1 of the consent orders made on 18 July 2017 staying the order for possession made on 30 May 2017 should be vacated after termination of the agreement on which the stay was premised.' 'Whether any other basis existed to maintain the stay of the order for possession.' 'Whether the orders made by Judge Burchardt on 20 January 2017 or by Tracey J on 30 May 2017 should be set aside.']

Ratio Decidendi

The consent order staying the order for possession was made on the premise that the parties had entered into the Agreement. Because that Agreement had been terminated, the premise of the stay no longer existed and the stay should be vacated. The funding proposals advanced by the Pekars did not provide another basis to maintain the stay because the Trustees had not agreed to them, the Court should not impose that method of administration on the Trustees, and it was not clear that the proposed amounts would be sufficient to meet creditor claims and trustee remuneration and expenses.

Court Disposition

Application granted; paragraph 1 of the orders made on 18 July 2017 was vacated, with no order as to costs subject to any written submissions seeking a different costs order.

Orders

  • ['Paragraph 1 of the orders made on 18 July 2017 (whereby it was ordered by consent that paragraphs 4(3) and (4) of the orders made on 30 May 2017 be stayed) be vacated.' 'In relation to the costs of the interlocutory application dated 23 September 2019, subject to paragraph (b), there be no order as to costs.' 'If...