Sutherland v Rogic [2011] NSWSC 712

This case concerned the property owned by a husband and wife who later divorced, with the wife moving overseas. The husband became bankrupt and his trustee in bankruptcy seeks the sale of the property after getting no response from the ex-wife as to her interest in buying out her husband’s interest in the property. The trustee in bankruptcy now seeks the leave of the court to proceed with the appointment of trustees for the sale of the land.

Leave where defendant overseas and does not appear
Rule 11.4(1) provides that if an originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court.

Rule 11.6 provides that a document to be served outside Australia need not be personally served so long as it is served in accordance with the law of the country in which service is effected. In the UK personal service is not required and postal service is sufficient.

The court held that despatch to an address given by the wife in her proof of debt, together with the email address given to the trustee in bankruptcy was effective service and the court granted leave to the trustee in bankruptcy.

Bankruptcy of the husband
The court noted that bankruptcy severed the joint tenancy and the husband’s interest is limited to the amount agreed in the property settlement. The court held that in the absence of the wife wanting to buy out her husband’s interest, there is no alternative but to order the sale of the property so that the bankrupt estate can receive its portion after payment of the costs of the application and of the sale.

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