Newman (Trustee), in the matter of Robertson (Bankrupt) v Robertson [2026] FedCFamC2G 563

(a) remove any rubbish and items of personal property from the Property (Personal Property); and

(b) provide a set of keys to all windows, doors, garage (and any shed) at the Property to the Applicant.

1. Pursuant to ss 30(1), 77(1)(e) and 77(1)(g) of the Bankruptcy Act 1966 (Cth), if the Respondents fail to remove the Personal Property pursuant to Order 2(a) herein, the Applicant is empowered to remove and dispose of any and all Personal Property from the Property as he sees fit and the cost of removal, disposal and storage of such Personal Property shall be at the sole cost of the Respondents and if they fail to pay those amounts, they shall be paid from the bankrupt estate of the First Respondent.
2. If the Respondents are in breach of Order 1 herein, the Applicant will be entitled to:

(a) issue a warrant of possession such that the Respondents and any other person residing at the Property must vacate the Property; and

(b) upon execution of the warrant of possession, the Applicant is permitted to change the locks at the Property and any other person residing at the Property will not be entitled to re-enter the Property after that time for any reason.

1. Pursuant to ss 30, 77(1)(e) and 77(1)(g) of the Bankruptcy Act 1966 (Cth), ss 213(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 33.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), a warrant of possession be issued in respect of the Property substantially in the form of Annexure A to this Order , and such warrant to lie in the Registry and not to be acted upon unless the Applicant files an affidavit after 11 May 2026 deposing that the Respondents have not given vacant possession of the Property to the Applicant. For this purpose, an affidavit sworn by the Applicant or Applicant's lawyer deposing to the non-compliance with this Order shall be sufficient proof to enable the issue of the warrant of possession when filed with the Court.
2. By 4.00pm on 15 April 2026, the Applicant personally serve a copy of this Order on the Respondents and also attach a copy of the Order to the front door of the Property, together with a copy of r 24.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3. The Applicant's costs of this application are proper costs of the bankrupt estate of Dianne Elizabeth Robertson and shall be paid in priority in accordance with s 109 of the Bankruptcy Act 1966 (Cth) from the property of the bankrupt estate of the First Respondent.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

ANNEXURE A

Warrant of Possession

No. MLG 4512 of 2025

Federal Circuit and Family Court of Australia (Division 2)

Registry: Melbourne (General Federal Law)

Rule 53.08 Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Form 53B

IN THE MATTER OF THE BANKRUPT ESTATE OF DIANNE ELIZABETH ROBERTSON

PHILIP NEWMAN (AS TRUSTEE OF THE BANKRUPT OF DIANNE ELIZABETH ROBERTSON)

Applicant

DIANNE ELIZABETH ROBERTSON

First Respondent

CRAIG ANDREW MILHAM

Second Respondent

TO THE SHERIFF:

In respect of the order dated 10 April 2026 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 the 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.

SCHEDULE

4 Orchard Court, Somerville, Victoria 3912 being the whole of the property contained in certificate of title Volume 9901 Folio 349.

Issued: 10 April 2026

By the Court

REGISTRAR

Issued at the request of the Applicant.

The last known address of the Respondents is 4 Orchard Court, Somerville, Victoria, 3912.

1. Before the Court is an Application by the trustee of the bankrupt estate of Dianne Robertson (Bankrupt Estate) pursuant to ss 30(1), 77(1)(g), 77(1)(e) and 129(2) of the Bankruptcy Act 1966 (Cth) (Act) filed on 5 December 2025.
2. The trustee, Mr Philip Newman (Trustee), seeks final orders requiring the respondents, Ms Dianne Elizabeth Robertson (Ms Robertson) and Mr Craig Andrew Milham (Mr Milham), to deliver vacant possession of the property situated at 4 Orchard Court, Somerville in the State of Victoria and more properly described in Certificate of Title Volume 09901 Folio 349 (Property). The Trustee seeks further orders that if the respondents fail to deliver vacant possession of the Property, a warrant of possession be issued.
3. The first and second respondent are wife and husband, respectively.

1. On 22 August 2024, Registrar Edwards pronounced an order for sequestration against the estate of Ms Robertson following an application by the petitioning creditor, Aerolink Property Corporation Pty Ltd. On that same date, the Trustee was appointed trustee of the Bankrupt Estate pursuant to s 58 of the Act. Notation A to those orders provided 1 July 2024 as the date of the act of bankruptcy.

1. From 30 October 2006 to 22 December 2014, the respondents were the joint proprietors of the Property.
2. On 23 December 2014, the second respondent's trustees in bankruptcy became the registered proprietor of the second respondent's share in the Property.
3. On 17 August 2016, the first respondent acquired the interest of the second respondents' trustees in bankruptcy in the Property so that she became the sole registered proprietor.
4. On 26 June 2025, the first respondent's sole interest in the Property vested in the Trustee pursuant to s 58(1) of the Act.
5. The Property is encumbered by a mortgage registered in favour of Secure Funding Pty Ltd ACN 081982 872, the loan balance of which was $264,231.03 as at 17 February 2026. The Property is also encumbered by a caveat lodged by Hanson Construction Material Pty Ltd for a debt of approximately $65,657.15. Accordingly, the secured debts total approximately $329,888.18.
6. The Property has a value of approximately $878,000.00 based on an online appraisal dated 28 November 2025.
7. The known unsecured creditors of the Bankrupt Estate are:

· Aerolink Property Corporation Pty Ltd for the sum of $28,907.43, which has a caveat registered over the Property;

· Confined Concreting Pty Ltd (In Liquidation) for the sum of $909,957.00; and

· Australian Taxation Office for the sum of $440,651.00.

1. On 19 September 2025, a Notice to Vacate was issued to the respondents requiring they vacate the Property within 14 days. The Trustee submits that the respondents continue to reside in the Property.

1. On 18 May 2023, a caveat was lodged on the title to the Property by Kingsford Lawyers, solicitors acting for the second respondent, on the grounds of implied, resulting or constructive trust with the interest as charge (Kingsford Caveat).
2. On 28 August 2024 and 26 September 2024, the Trustee sent correspondence to Kingsford Lawyers requesting that the second respondent provide documentation to substantiate the Kingsford Caveat lodged over the Property. The Trustee did not receive a response from either Kingsford Lawyers or the second respondent to either request.
3. On 13 December 2024 and 11 February 2025, the Trustee sent correspondence to the second respondent regarding the withdrawal of the Kingsford Caveat. The Trustee did not receive a response from the second respondent.
4. As stated above, on 26 June 2025, the Trustee, in his capacity as Trustee of the Bankrupt Estate, became the sole registered proprietor of the Property.
5. On 25 July 2025, the Trustee lodged a s 89A application to Land Use Victoria under the Transfer of Land Act 1986 (Vic) seeking removal of the Kingsford Caveat lodged by the second respondent on the title to the Property.
6. On 10 September 2025, the Kingsford Caveat was removed by the Registrar of Titles from the title to the Property.

Attempts to communicate with the Bankrupt prior to filing the Application

1. The Trustee deposes to numerous attempts made to contact the respondents between 27 August 2024 and 25 September 2025 regarding the Bankrupt Estate and the first respondent's obligations under the Act.
2. On 27 August 2024, the Trustee sent correspondence regarding the Bankrupt Estate, which included a blank Statement of Affairs for completion, addressed to Ms Robertson to the Property by registered post (August Letter). On 29 August 2024, the Trustee also sent an email to the first respondent's email address (Ms Robertson's Email Address) enclosing a copy of the August Letter (August Email). The Trustee did not receive a response to the August Letter or August Email.
3. On 28 August 2024 and 29 August 2024, Mr Joshua Peters (Mr Peters), a representative of the Trustee, contacted Ms Robertson on her mobile number. On both occasions, Mr Peters deposes to explaining the bankruptcy process to Ms Robertson and reminding her of the obligation to complete the Statement of Affairs and the other forms included in the August Letter and August Email.
4. On 29 August 2024 and 4 September 2024, Mr Peters sent correspondence by way of email to Ms Robertson's Email Address regarding collection of information in relation to the bankruptcy.
5. On 22 October 2024, Mr Peters deposes to having a telephone conversation with Ms Robertson in which she was again reminded of the obligation to complete the Statement of Affairs and the other forms included in the August Letter and August Email. Following the telephone conversation, Mr Peters sent correspondence by way of email to Ms Robertson's Email Address attaching the August Letter. On 23 October 2024, Mr Peters received an email response from Ms Robertson's Email Address whereby Ms Roberston stated she was at work and would call when she finished. Following this, no contact was made by Ms Robertson to Mr Peters.
6. On 28 October 2024, the Trustee sent correspondence by way of email to Ms Roberton's Email Address which enclosed a copy of the Initial Remuneration Notice and the Remuneration Request Approval Report and advised that Ms Robertson could request a Remuneration Claim Notice within 20 business days of receiving the Remuneration Request Approval Report (October Email). The Trustee did not receive a response to the October Email.
7. On 29 November 2024, upon instruction from the Trustee, Mr Peters attended upon the Property to obtain information about the Bankrupt Estate. Mr Peters deposes to having a conversation with the second respondent as to the steps that would be taken by the Trustee to obtain vacant possession of the Property.
8. On 2 December 2024, Mr Peters received an email from Ms Robertson's Email Address whereby Ms Roberston stated she would "get the documents through to you this week" and querying whether there was anything further Mr Peters required. Mr Peters deposes to attempting to call Ms Robertson to again remind her of the outstanding requirements in the bankruptcy, however Ms Robertson did not accept the call and failed to return Mr Peters call.
9. On 4 July 2025, the Trustee sent correspondence by way of email to Ms Robertson's Email Address requesting that Ms Robertson complete the questionnaire for the forthcoming Contribution Assessment Period for the period 22 August 2025 to 21 August 2026 and to do so by no later than 11 September 2025 (July Letter). The Trustee did not receive a response to the July Letter.
10. As stated above, on 19 September 2025 a Notice to Vacate was issued to the respondents requiring they vacate the Property within 14 days.
11. On 23 September 2025, a representative of the Trustee, Ms Catherine Pulverman (Ms Pulverman) deposes to receiving a phone call from Ms Robertson. During that phone call, Ms Robertson indicated that she did not wish to vacate the Property. Ms Pulverman informed Ms Robertson, noting the numerous correspondence sent without response, that the Trustee intended to sell the Property and requested that Ms Roberton put any proposal concerning the vacation of the Property and the bankruptcy generally in writing.
12. On 25 September 2025, Ms Robertson sent an email to Ms Pulverman in relation to the Notice to Vacate (September Email). Ms Pulverman deposes to not receiving this email at that time as her workplace IT provider blocked the email as spam. Ms Robertson's email indicated, amongst other things, that she wished to make some proposal to satisfy the Trustee's claim.
13. On 5 December 2025, the Trustee filed the Application with the Court.
14. On 11 February 2026, Ms Pulverman deposes to her colleague, Mr Patrick Hanney of FCW Lawyers, receiving an email from Ms Robertson in which, amongst other things, she sought a response to the September Email.
15. On 17 February 2026, Ms Pulverman sent an email to Ms Robertson's Email Address which, in effect, informed the respondents that unless Ms Robertson could pay out all amounts to annul the bankruptcy, the Trustee would proceed with the application for vacant possession of the Property (February Email). The February Email also set out each of the creditors which would be required to annul the bankruptcy. The respondents did not provide a response to the February Email.

1. The Trustee filed the Application on 5 December 2025 seeking orders pursuant to ss 30(1), 77(1)(g), 77(1)(e) and 129(2) of the Act. The Application was accompanied by a Genuine Steps Statement and an affidavit of the Trustee, an affidavit of Mr Peters and an affidavit of Ms Pulverman.
2. On 9 December 2025, the Trustee filed two affidavits of service detailing the personal service of the Notice to Vacate dated 19 September 2025 on the first and second respondent by a process server.
3. On 13 January 2026, the Trustee filed two affidavits of service detailing the service of the Application and supporting material on the first and second respondent.
4. On 13 January 2026, the Court sent an email to the Trustee notifying the parties that the Directions Hearing on 21 January 2026 would proceed by way of Webex videoconference at 9.30am and sought appearances from the parties (Court's Correspondence). In that correspondence, the Court requested that the solicitor for the Trustee provide a copy of the Court's Correspondence to the respondents forthwith.
5. On 19 January 2026, the Trustee filed an affidavit of service detailing the service of the Court's Correspondence on the first and second respondent by way of email to Ms Robertson's Email Address on 15 January 2026, and by express registered post addressed to the respondents at the Property.
6. The respondents did not appear at the Directions Hearing on 21 January 2026. At the Directions Hearing, the solicitor for the Trustee indicated to the Court that she had received correspondence from Ms Robertson via Ms Robertson's Email Address on 15 January 2026, but that Ms Robertson's email did not indicate whether the respondents would be attending the Directions Hearing. The Court was satisfied that all efforts had been made to put the respondents on notice of the Directions Hearing. At the Directions Hearing, the Court made orders listing the matter for Final Hearing on 23 March 2026 and requiring the respondents to file a Notice of Address for Service, Response and an affidavit by 11 February 2026. The Trustee was also ordered to serve a sealed copy of the orders on the respondents forthwith (January Orders).
7. On 2 March 2026, the Trustee filed an affidavit of service detailing the service of the January Orders on the respondents. The evidence before the Court demonstrates that service was effected in accordance with the January Orders. The respondents did not file any material in accordance with the January Orders.
8. On 27 February 2026, Ms Pulverman filed a supplementary affidavit annexing a copy of the September Email and the February Email.

1. The Application came before me for hearing on 23 March 2026, with Ms Pulverman, solicitor, appearing on behalf of the Trustee and there being no appearance by or on behalf of the respondents.
2. At the hearing on 23 March 2026, Ms Pulverman tendered a chain of email correspondence between Ms Laura Pavia, a representative of the Trustee, and Ms Robertson. In effect, the correspondence indicates that Ms Pavia emailed Ms Robertson's Email Address on 19 March 2026 confirming the date, time and location of the Final Hearing. At 9.38am on the day of the Final Hearing, Ms Robertson responded to Ms Pavia's email in which she stated as follows (without amendment):

...

I had sent this to my solicitor who will be in attendance.

I'm unable to attend in person today as totally unwell.

I will hear from them with the next details for the funds etc in being settled to obtain our property

Thanks

Dianne

1. The matter was listed for Final Hearing at 10.00am on 23 March 2026. There was no appearance by or on behalf of the respondents at 10.00am. The matter was called at 10.09am and 10.11am. There was no appearance by or on behalf of the respondents.
2. There is nothing before the Court to indicate that the respondents are, or at any time have been, represented in this matter or have engaged a solicitor. Further, the respondents have at no time filed a Notice of Address for Service.
3. The Trustee relied on the following:

(1) Application Form B2 filed 5 December 2025;

(2) affidavit of Philip Newman filed 5 December 2025;

(3) affidavit of Joshua Peters filed 5 December 2025;

(4) affidavit of Catherine Pulverman filed 5 December 2025;

(5) supplementary affidavit of Catherine Pulverman filed 27 February 2026;

(6) outline of submissions filed 13 March 2026;

(7) a Genuine Steps Statement of the Trustee filed 8 December 2025; and

(8) seven affidavits of service filed in these proceedings.

The Respondents' non-participation and proceeding in their absence

1. As noted, the respondents did not file a Response to the Application nor have they filed any other material. The respondents did not attend the Directions Hearing on 21 January 2026 or the hearing before me on 23 March 2026.
2. The matter proceeded in the respondents' absence in default of their appearance: r 22.04(1)(b)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules). With reference to the substantial service and other material before the Court, I am satisfied that the respondents were on notice of the Application and the hearing on 23 March 2026 and have been afforded an opportunity to be heard. A court cannot force a party to take advantage of that opportunity: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [38] - [40].

1. The Trustee relies upon two different provisions of the Act, namely, ss 30(1) and 77(1) as the sources of the Court's power to make an order that the respondents vacate the Property and give possession of the Property to the Trustee. Those provisions of the Act are as follows:

30 General powers of Courts in bankruptcy

(1) The Court:

(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

77 Duties of bankrupt as to discovery etc. of property

(1) A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:

(a) forthwith after becoming a bankrupt, give to the trustee:

(i) all books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of his or her examinable affairs; and

(ii) any passport or document issued for the purposes of travel held by the bankrupt; and

(b) attend the trustee whenever the trustee reasonably requires; and

(ba) give such information about any of the bankrupt's conduct and examinable affairs as the trustee requires; and

(bb) as soon as practicable after the later of the following times:

(i) the time the bankrupt's statement of affairs was accepted under subsection 57B(1);

(ii) the time the bankrupt became bankrupt;

advise the trustee of any material change that occurred between the time the statement was filed and the later of the times mentioned in subparagraph (i) or (ii); and

(c) attend a meeting of creditors whenever the trustee requires; and

(d) at each meeting of creditors at which the bankrupt is present, give such information about any of the bankrupt's conduct and examinable affairs as the meeting requires; and

(e) execute such instruments and generally do all such acts and things in relation to his or her property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; and

(f) disclose to the trustee, as soon as practicable, property that is acquired by him or her, or devolves on him or her, before his or her property and its realization as are required by the Act or by the trustee or as are ordered by the Court upon the application of the trustee; and

(g) aid to the utmost of his or her power in the administration of his or her estate.

1. Further, the Trustee relies on s 129(2) of the Act which provides that:

(2) The Court may, on the application of the trustee, enforce possession accordingly.

1. In Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [94] (Coshott) the Court held that s 30 of the Act:

...provide[s] sufficient power to make orders against a bankrupt for the vacation of property, issuing a warrant of possession and for the sale of property in circumstances where the bankrupt is not complying with his or her obligations under the Act.

1. In Ruhe (Trustee) v Australian Securities and Investments Commission [2022] FCA 354 (Ruhe) O'Callaghan J held at [12] - [14]:

Section 30(5)(a) provides that where a bankrupt "has failed to comply with an order or direction of a Registrar, or with a direction or requirement of ... [a] trustee, under this Act" the court may "order the person who has failed to comply with the order, direction, requirement or request ... to comply with it ..."

The cases make it clear that the power to make orders under s 30(1)(b) of the Act must be exercised for the purposes of carrying out or giving effect to the Act in the particular case. Those purposes are to provide for the appropriation and equitable distribution of the assets of the insolvent debtor.

Further, the cases make clear that the provision is not to be construed narrowly. On the contrary, it is a facultative provision giving the court full power (within obvious limits of jurisdiction) to make such orders as it considers should be made to carry out and give effect to the Act. Accordingly, the section has been held to provide sufficient power to make orders against a bankrupt for the vacation of property, issuing a warrant of possession and for the sale of property in circumstances where the bankrupt does not comply with their obligations under the Act.

1. In Horne (as trustee of the bankrupt estate of Sekulovksi) v Sekulovski [2009] FCA 1164 at [8] (Horne) Tracey J held:

It is plainly necessary that the Applicant be in a position to provide any purchaser of the property with vacant possession in order to facilitate a sale, and it is also necessary, in order to achieve that end, that the property be placed in such a condition that it may be attractive to a potential purchaser. The Respondents, despite having been given the opportunity to do so, have prevaricated and have not responded to requests that they vacate the premises. Accordingly, in my view, it is appropriate that the orders sought in the application should be made.

1. I am satisfied that the Court has power to make the orders sought: ss 30(1) and 77(1); Coshott, Ruhe; Horne. Further, I am satisfied that, in all the circumstances, it is appropriate to make the orders sought.
2. The bankruptcy has been on foot since August 2024. There have been significant attempts of the Trustee and his colleagues to engage with the respondents regarding the bankruptcy, including repeated requests for Ms Robertson to cooperate with the Trustee and provide all necessary documents in respect of the bankruptcy, including a Statement of Affairs. On the evidence before the Court, Ms Robertson has failed to file a Statement of Affairs as required by the Act. Nearly two years have passed since Ms Robertson was first requested to file a Statement of Affairs. In that period the Trustee sent a number of letters to the Property and to Ms Robertson's Email Address seeking a Statement of Affairs. I am satisfied that Ms Robertson has been notified and reminded on multiple occasions of her obligation to file a Statement of Affairs and, notwithstanding those attempts made by the Trustee, she has not done so.
3. The Notice to Vacate was served on the respondents on 19 September 2025. I am satisfied that the respondents have been given sufficient opportunity to voluntarily vacate the Property but have failed to do so, thereby necessitating this Application. Moreover, the respondents have not advanced any proposal for the annulment of the bankruptcy, nor is there any evidence before the Court which suggests that the Trustee has excused Ms Robertson or that Ms Robertson has other sufficient cause as provided for in s 77 of the Act.
4. Accordingly, I am satisfied that the orders sought are appropriate and necessary for the Trustee to administer the Bankrupt Estate for the benefit of the creditors. The Trustee seeks certain ancillary orders which I also consider are appropriate to make.
5. The Trustee seeks that a warrant of possession be issued.
6. Sections 213(2) and (3) of the _Federal Circuit and Family Court of Australia Act 2021 (_Cth) provide as follows:

213 Enforcement of judgment

...

(2) A person in whose favour a judgment of the Federal Circuit and Family Court of Australia (Division 2) is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

(2) Subsection (2) has effect subject to the Rules of Court.

(1) A party may apply to the Court to make an order, to issue any writ, or to take any other step that can be taken in the Supreme Court of the State or Territory in which the judgment or order has been made as if the judgment or order was a judgment or order of that Supreme Court.

(2) An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.

(3) A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order has been made.

1. In circumstances in which the respondents have failed to respond to demands to vacate the Property, and so as to ensure enforcement of the Court's orders, I will order that a warrant of possession be issued in respect of the Property, and such warrant shall lie in the Registry. It may be relied upon to enforce the Court's judgment if needed.
2. The Trustee further seeks costs of and incidental to this Application to be met from the surplus out of the Bankrupt Estate as a priority payment in accordance with s 109 of the Act. I shall order accordingly.

1. Accordingly, for the reasons set out above, I make the orders set out at the commencement of this judgment.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.