Federal Court of Australia

Micheletto, in the matter of Jankie v Jankie [2025] FCA 738

ORDERS

THE COURT DECLARES THAT:

1.    Pursuant to section 21 of the Federal Court Of Australia Act 1976 (Cth) (Federal Court Act) and/or section 30(1)(b) or section 129(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) that the real property at 1387A High Street Glen Iris Vic 3146, being more particularly described as Certificate of Title Volume 10045 Folio 942 (Property) is property the beneficial ownership of which vested in the Applicant upon the Applicant’s appointment.

2.    Pursuant to section 21 of the Federal Court Act and/or section 30(1)(b) or section 129(2) of the Bankruptcy Act that the Applicant is entitled to vacant possession of the Property.

THE COURT ORDERS THAT:

3.    Pursuant to section 30(1)(b), section 77(1)(e) and (g) and/or section 129(2) of the Bankruptcy Act, that the Respondent deliver up vacant possession of the Property to the Applicant within 30 days.

4.    Pursuant to section 30(1)(b), section 77(1)(e) and (g) and/or section 129(2) of the Bankruptcy Act, that the Respondent delivers up any and all copies of the keys (including any electronic fobs or other form of key) to the Property (including to any window or door on the Property) (Keys) within 30 days.

5.    Pursuant to section 30(1)(b), section 77(1)(e) and (g) and/or section 129(2) of the Bankruptcy Act, that the Bankrupt remove all property which has not vested in the Applicant from the Property within 30 days.

6.    Pursuant to section 30(1)(b), section 77(1)(e) and (g) and/or section 129(2) of the Bankruptcy Act, that a warrant for vacant possession of the Property in the form annexed to Annexure B be:

(a)    held by the court registry; and

(b)    issued to the Applicant for immediate execution if and when the Applicant files an affidavit (not before the expiry of 31 days from the date of the order) stating the Respondent has failed to comply with paragraph 3 above.

7.    Pursuant to section 30(1)(b), section 77(1)(e) and/or section 129(2) of the Bankruptcy Act, that a warrant for delivery of the Keys in the form at Annexure A be:

(a)    held by the court registry; and

(b)    issued to the Applicant for immediate execution if and when the Applicant files an affidavit (not before the expiry of 31 days from the date of the order) stating the Respondent has failed to comply with paragraph 4 above.

8.    The Respondent pay the Applicant’s costs, including any costs arising out of non-compliance with order 5.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

No.    VID 1174 of 2024

Federal Court of Australia

District Registry: Victoria

Division: General

In the matter of the Bankrupt Estate of Adam Simon Jankie

Fabian Kane Micheletto and Michael Carrafa in their capacity as joint and several trustees of the Bankrupt Estate of Adam Simon Jankie

Applicant

Adam Simon Jankie

Respondent

WARRANT OF DELIVERY

TO THE SHERIFF:

In respect of the judgment dated 24 June 2025 by which it was adjudged that the Respondent deliver the goods described in the schedule to the Applicant

Cause The Goods To Be Delivered to the Applicant

And Indorse on this warrant immediately after you have performed all your obligations under it a statement of the date, time and place at which you have executed or attempted to execute the warrant and the results of the execution and send a copy of the statement to the Applicant.

ISSUED:

BY THE COURT

PROTHONOTARY

Issued at the request of the Applicant.

The last known address of the Respondent is 1387A High Street Glen Iris, Victoria 3146.

Schedule

Any and all copies of the keys (including any electronic fobs or any other form of key) to the property located at 1387A High Street Glen Iris Vic 3146, being more particularly described as Certificate of Title Volume 10045 Folio 942.

Annexure B

No.    VID 1174 of 2024

Federal Court of Australia

District Registry: Victoria

Division: General

In the matter of the Bankrupt Estate of Adam Simon Jankie

Fabian Kane Micheletto and Michael Carrafa in their capacity as joint and several trustees of the Bankrupt Estate of Adam Simon Jankie

Applicant

Adam Simon Jankie

Respondent

WARRANT OF POSSESSION

TO THE SHERIFF:

In respect of the judgment dated 24 June 2025 by which it was adjudged that the Applicant recover possession of the land described in the schedule

Enter The Land and cause the Applicant to have possession of it

And Indorse on this warrant immediately after you have performed all your obligations under it a statement of the date, time and place at which you have executed or attempted to execute the warrant and the results of the execution and send a copy of the statement to the Applicant.

ISSUED:

BY THE COURT

PROTHONOTARY

Issued at the request of the Applicant.

The last known address of the Respondent is 1387A High Street Glen Iris, Victoria 3146.

Schedule

1387A High Street Glen Iris Vic 3146, being more particularly described as Certificate of

Title, Volume 10045 Folio 942.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANDERSON J:

1.    Introduction

1    In this matter, the applicants (the Trustees), are joint and several trustees of the respondent’s (Mr Jankie) bankrupt estate. The Trustees, by application filed on 30 October 2024, seek declaratory relief and consequential orders pursuant to the Bankruptcy Act 1966 (Cth). They seek the vesting and possession of Mr Jankie's interest in real property at 1387A High Street, Glen Iris, in Victoria (the Property).

2    The Trustees rely upon affidavits of Fabian Kane Micheletto made 30 October 2024 and 29 January 2025. Mr Jankie has not filed grounds of objection but opposes the application on the basis of an affidavit made by him on 24 December 2024.

3    It is uncontroversial that the Property is vested property within the meaning of s 58 of the Bankruptcy Act. The need for this application has arisen in circumstances where Mr Jankie has failed to progress a proposal to annul his bankruptcy.

4    It is submitted by the Trustees that two issues arise on this application. First, can Mr Jankie resist the orders for possession sought by the Trustees on the basis that the Trustees and Mr Jankie have entered into a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 (Vic), and secondly, should the court otherwise refuse the relief sought by the Trustees on discretionary grounds including that (i) the Property is not presently saleable without extensive works first being carried out, and (ii) relatedly, Mr Jankie should be afforded additional time to pursue an annulment or the resolution of the estate dispute which involves the estate of his late grandfather.

2.    Background

5    Turning to the facts of the case, on 20 December 2012, Mr Jankie was registered on title to the Property. The Property sits adjacent to a similar or a “mirror” property owned by a company controlled by Mr Jankie's late grandparents. Originally the two properties, being dwellings on separate parcels of land, were separated by an internal dividing wall. At a time not known to the Trustees but prior to the sequestration order, the dividing wall was removed and other renovations carried out. The dwelling house, which now sits across both titles, is occupied by Mr Jankie and his family as a single residence.

6    On 25 May 2023, a sequestration order was made against Mr Jankie's estate. Mr Jankie remained the registered proprietor of the Property at the time of that order.

7    On 31 May 2023, the Trustees first communicated with Mr Jankie in respect of the administration of his bankrupt estate. Shortly after, Mr Jankie raised the prospect of an annulment. In December 2023, the Trustees put an annulment proposal to Mr Jankie. The amount required to annul the bankruptcy at that time was $424,394.82. Under the proposed annulment proposal, the amount was to be paid in two instalments, the first in the sum of $50,000 and then the balance, some $374,394.82, by the end of January 2024.

8    On 22 December 2023, Mr Jankie paid the first proposed instalment of $50,000 to the Trustees. During the period of around January 2024 to June 2024, the Trustees sought to progress the annulment. Mr Jankie did not pay the balance of the funds required for the annulment. On 23 July 2024, the Trustees were registered on title to the Property. On 21 August 2024, the Trustees issued a demand to Mr Jankie to vacate the Property and provide vacant possession. On 18 October 2024, the Trustees issued a further demand. These proceedings were commenced on 31 October 2024.

3.    Consideration

9    It is relevant that I refer to correspondence which is annexed to Mr Micheletto's first affidavit. In particular, the following correspondence from the Trustees' solicitors, Mills Oakley. The first is the Mills Oakley letter of 8 December 2023, the second is the Mills Oakley letter of 18 December 2023, the third is the Mills Oakley letter of 7 June 2024, the fourth is the Mills Oakley letter of 21 August 2024, and, finally, the Mills Oakley letter of 18 October 2024. It is also relevant to refer to the email from Mr Jankie’s previous solicitors, LGM Advisors, to Mills Oakley on 15 December 2023.

10    It is apparent from reading that set of correspondence that the $50,000 that was paid by Mr Jankie was for the purposes of being the first instalment of the annulment proposal. It was not a payment made in respect of rent or a payment made for an entitlement to remain in the Property. That $50,000 is referable solely to an annulment proposal which Mr Jankie has failed to fulfil. It is perfectly clear from that correspondence that there does not exist a tenancy at will. There is no tenancy under the Residential Tenancies Act in my view, and the Trustees are entitled to the immediate possession of the Property.

11    That disposes of the first basis upon which Mr Jankie opposes the orders that are sought and I find that there is no implied residential tenancy agreement in existence.

12    The second ground Mr Jankie opposes the application for possession is on a discretionary basis. Mr Jankie alleges that, as a matter of discretion, orders for vacant possession should not be made as such orders will not be, firstly, in the best interests of creditors of his bankrupt estate, or secondly, himself, insofar as a surplus is likely to be realised from the sale of the Property. The basis of Mr Jankie’s submission is primarily that the Property cannot be sold itself without extensive works being conducted in order to separate the Property from the mirror property into separate dwellings, and that to sell the Property by itself would significantly diminish its value. Mr Jankie submits that the mirror property is subject to a deceased estate distribution in which he expects the mirror property will be distributed to him, and that it would be appropriate to realise the Property alongside the mirror property once the distribution is completed.

13    I am satisfied on the basis of the affidavit material relied upon by the Trustees that no discretionary matters arise which would prohibit the making of an order for possession today. The Trustees, upon obtaining possession of the Property, have a duty to realise the Property at the best price reasonably available, for the benefit of the creditors of the bankrupt estate. Making an order today does not relieve the Trustees of that duty and obligation. The Trustees, upon obtaining possession, will form a view as to how best to realise the estate for the benefit of creditors. For those reasons, I find that there are no discretionary reasons which would preclude the making of the orders sought by the Trustees today.

Associate:

Dated:    24 June 2025