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COURT JUDGMENTS - Personal Bankruptcy

Last updated 19/12/2017







  Rambaldi (Trustee) v Commissioner of Taxation, in the matter of Alex (Bankrupt) [2017] FCAFC 217   BANKRUPTCY – whether a loan agreement between third party and bankrupt to discharge debt to Commissioner of Taxation was a transfer of property – whether a preference under s 122 of Bankruptcy Act 1966 (Cth) –whether a Quistclose trust existed – appeal dismissed 18 December 2017  
  Fielder v Cooper (Trustee), in the matter of Dunham (Bankrupt) [2017] FCA 357   BANKRUPTCY AND INSOLVENCY – application sought a declaration that a proof of debt of a creditor should not have been accepted by the trustee for voting purposes at a creditors’ meeting – ss 82 and 64ZA of the Bankruptcy Act 1966 (Cth) considered – the debts claimed did not have to be “due and payable” to be provable in the bankruptcy proceedings – trustee was permitted to act in a summary way in determining the creditor’s entitlement to vote – the evidence indicated that the admission of the disputed debt for voting purposes was not inappropriate.  HELD – application dismissed
7 April 2017  
  Szepesvary v Weston (Trustee), in the matter of Szepesvary (Bankrupt) [2017] FCA 344   BANKRUPTCY – trustees – application for inquiry into conduct of trustee under s 179 of Bankruptcy Act 1966 (Cth) – where trustee in bankruptcy obtained warrant of possession addressed to sheriff – where bankrupt alleged that sheriff did not serve warrant of possession when taking possession of property – whether sufficient grounds to order an inquiry.
4 April 2017  
  Ambrose as Trustee of the Bankrupt Estate of Peter Athanasas V Athanasas & Anor [2016] SASC 63   BANKRUPTCY - ADMINISTRATION OF PROPERTY - REALISATION OF PROPERTY - POWERS OF TRUSTEE TO DEAL WITH PROPERTY
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTION OR SUIT.  Application by the plaintiff for sale of land - the plaintiff is the trustee in bankruptcy of one of the registered proprietors - the application is made pursuant to s 70 of the Law of Property Act 1936 - the defendants are the other registered proprietors of the land - the defendants say that the interest of the bankrupt was held on trust for them - whether a resulting trust arises - whether the presumption of advancement is rebutted.
20 May 2016  
  Needham & Trustees of the Bankrupt Estate of Needham [2016] FamCA 253   FAMILY LAW – PROPERTY SETTLEMENT – Where the husband has been declared bankrupt – Where the proceedings are between the wife and Trustees of the Bankrupt Estate of the husband – Where the only significant asset is the former matrimonial home and it is agreed between the parties that the asset is to be sold – Where the Court finds it is just and equitable to alter the interests of the parties pursuant to section 79(2) – Where the Court finds the contributions of the wife and husband were equal until separation – Where the Court finds the contributions of the wife in the period post separation were greater than the husband – Whether an adjustment should be made in favour of the wife due to alleged non-disclosure on behalf of the Trustees – Whether an adjustment should be made in favour of the wife as a result of the husband’s conduct that led to his bankruptcy – Where the Court finds section 75(2) considerations favour an adjustment of 5 per cent in favour of the wife – Orders made for the wife to receive 68 per cent of the proceeds of sale of the former matrimonial home and 68 per cent of the value of her other property – Orders made for the Trustees to receive 32 per cent of the proceeds of sale of the former matrimonial home and 32 per cent of the value of the wife’s other property.
Bankruptcy Act 1966 (Cth) ss 58, 81, 132. Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) (No. 20 of 2005). Family Law Act 1975 (Cth) ss 4, 74, 75(2), 75(3), 79(1), 79(2), 79(4), 79(11). Revised Explanatory Memorandum, Bankruptcy and Family Law Legislation Amendment Bill 2005 (Cth). Family Law Rules 2004 (Cth) rr 13.01, 13.02, 13.04, 13.07.
20 April 2016  
  Scott (Trustee), in the matter of de Varda (Bankrupt) v de Varda [2015] FCA 239   BANKRUPTCY – sequestration orders made – refusal to answer questions at an examination – order sought for the filing of a statement of affairs. (Note: Joseph de Varda filed a Statement of Affairs on 31 March 2015 and his bankruptcy was annulled (cancelled) on or about 10 September 2015 upon payment of his debts.) 18 March 2015  
  Lavin v Toppi [2015] HCA 4   Contribution – Requirement of coordinate liabilities – Where appellants and first and second respondents were co-sureties of guaranteed debt – Where first and second respondents paid creditor disproportionate amount of guaranteed debt – Where creditor gave appellants covenant not to sue – Whether first and second respondents entitled to contribution from appellants – Whether appellants and first and second respondents shared coordinate liabilities despite creditor's covenant not to sue.

Words and phrases – "contribution", "contribution in equity", "coordinate liabilities", "covenant not to sue", "of the same nature and to the same extent".
11 February 2015  
  Windoval Pty Limited (Trustee) v Donnelly (Trustee) in the Matter of Donnelly (Trustee) [2014] FCAFC 127   PRACTICE AND PROCEDURE – Whether appropriate to order a new trial pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth). BANKRUPTCY AND INSOLVENCY – Whether the Commissioner of Taxation was an impending creditor within the meaning of s 121(1)(b) of the Bankruptcy Act 1966 (Cth) 26 September 2014  
  Roderick Mackay Sutherland in Trustee of the Property of Kerrie Nisic aka Kerrie Tsaprounis a Bankrupt v Eugina Tsaprounis [2014] NSWSC 1255   REAL PROPERTY - Co-owners - Statutory power of sale - Application by bankruptcy trustees of one co-owner - Whether bankruptcy trustees ought be appointed as trustees of sale - whether costs of trustess relevant when considering the appointment of a trustee in bankruptcy as trustee for sale - whether mortgagee ought be notified 9 September 2014  
  Sutherland v Jatkar [2014] FCA 532   BANKRUPTCY – meaning of ‘provable debt’ – whether claim for contribution under s 23B of the Wrongs Act 1958 (Vic) a provable debt – whether claim a contingent debt or liability – whether claim a demand in the nature of unliquidated damages arising otherwise than by reason of contract, promise or breach of trust – whether claim within exclusive jurisdiction of Federal Court and Federal Circuit Court – whether claim an abuse of process. 22 May 2014  
  Relfo v Vasani [2014] EWCA Civ 360   Decision of the England and Wales Court of Appeal (Civil Division) re liquidators’ recovery of laundered monies through tracing.  In Relfo v Vasani [2014] EWCA Civ 360, it was held that where monies are improperly paid out of a company, they may be traced through various accounts to the end recipient, even if each of the stages in the laundering of the money cannot be identified. It is also likely to become a major authority on unjust enrichment deciding that indirect recipient of funds would be liable to give restitution where there is a sufficient degree of connection between the payment away and the receipt. 28 March 2014