Perpetual Trustee v Cuitanovic [2013] NSWSC 722

The lender was seeking possession. The borrower was made bankrupt ten days before the matter was decided, and his trustee in bankruptcy was substituted for him as a party to the court proceedings. The issue in the proceedings was whether the Court could proceed to grant judgment for possession in circumstances where the borrower was now bankrupt due to the Bankruptcy Act 1966. Ultimately, the judge concluded that it was open for him to do so because the lender was a “secured creditor”, and the lender was therefore entitled to possession of the property – however the Court could not give judgment for any monetary amount.

The second issue in the matter was that the borrower did not appear at court, and the judgment for possession could only be given where the lender had shown evidence that any occupant of the premises has notice of the application. The judge agreed that this was the case even though his trustee in bankruptcy appeared. The lender was able to prove notice and the judge therefore entered judgment for possession of the property in favour of the lender.

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