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Insolvency Trustee taken over partner's share in house.

I have posted on here over a year ago.  My partner was of the view to let sleeping dogs lie.  Now the issue has arisen again.  There is a bit of history with his case.  The short debt story is he has a CSA debt.  He went to court and signed orders that state that in the event the debt is not paid, his share of the house will have a cavaet placed over it.  Legal advice was minimal, and no alternative offered. His share of the house is now in the hands of the insolvency trustee (the official receiver) who act on behalf of the australian government solicitors who act on behalf of CSA.

A letter came from the insolvency trustee that was addressed to me outlining the request to mutually agree to sell the property.  The only way this process can be halted is if the Order is set aside, rescinded or withdrawn by the court.  Obviously the case will have to go to court now to appeal the SSAT decision on income, which my partner has put on the backburner, and may be past the time allowable to appeal.

But as the joint owner of the property, does anyone have any advice on what my rights are, and what will happen if I refused to mutually agree to sell the property?

You have brought up some very difficult legal issues. While those from may be able to give some background guidance it might be beneficial to also seek the assistance of an insolvency specialist. Insolvency law when it crosses into property law and equity law, like it sounds it has in your case, is very technical and not the place for generalist advice as a property is your greatest asset.



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Thank you for your repsonse. I have sought legal advice numerous times. Having spent substantial money on lawyers fees to seek consent orders, my partner and I cannot afford any advice. We did take advantage of free visits and met with legal aid, but as you can appreciate the issue is deeper that one visit. Does anybody know if this has happened to anyone before. That is, the CSA take action to recover debt by selling your house? I understand it is in the legislation, but do they really go that far?
Without knowing the details of the case there are a number of possible options available.

I will say that taking a SSAT decision to court may not get you the result your partners need as the court is limited in what it can do in a SSAT appeal and one can only appeal a SSAT decision on a point of law, and not on a point of fact. So unless the SSAT have made a dogs breakfast of the decision your partner may have no room to move here.

Your partner should be able to apply to the Federal Magistrates Court (FMC) for a stay order to stop them from taking the house to get some extra time, however your partner would have to have a pretty good reason for this.

Your partner may be able to apply directly to the FMC under section 110 of the child support assessment act to look at their child support case if it relates to a period greater than 18 months prior.

Your partner can also get straight to a courtroom under section 116 if the C$A rule that the circumstances of the case are too complex for C$A to deal with.

Also under section 116 your partner can also get to a court if there is another case or relevant matter already in the system.

So I think your partner's options are to apply for a stay order and then file under section 116 (as above) for a departure order.

To succeed your partner would need to be able to show why the house should not be taken and sold and also show why the financial circumstances of both parents and the children are fair or not fair etc….

I'm not sure what your rights are but I think they would have to get a court order to take the house off you too.

Other than this you should be talking to the Dept of Human services, Ombudsman, local politicians, media etc….

Hope this info helps.

What may happen is that the insolvency trustee may apply to the courts to have the property partitioned and the court may order the sale of the property in lieu of the partition.  

It may be of interest to read the Acts on Property Partition in the state where you are from.  

What the acts deal with are the sale/partition of property where there are two or more tenants (owners) to one property.
Thank you for your advice so far…i will have to do some more research and prepare some more paperwork based on your information.

I have previously prepared an appeal against SSAT decision where not all the evidence was considered when making their decision.  Is that an error of law?  Is that considered that natural justice was not applied?

Will look up the sections of legislation mentioned below in relation to a stay order then departure order.

I have taken the case the my local MP but his repsonse was just to quote SSAT and CSA legislation.  I also took case to Ombudsman, and again his repsonse was in the too hard basket.  Perhaps I need to try again.

Has anyone had any success writing to the Commonwealth Department of Finance to waive a debt to commonwealth?

Thanks you again, it's nice to have some fresh eyes cast over any possible options I may have left…
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