Allen Gordon Frost & Anor v John Sheahan as trustee of the Bankrupt Estate of Allen Gordon Frost

[2012] HCASL 196

ALLEN GORDON FROST & ANOR

v

JOHN SHEAHAN AS TRUSTEE OF THE BANKRUPT ESTATE OF ALLEN GORDON FROST

[2012] HCASL 196
A9/2012

1. The respondent is trustee of the bankrupt estate of the first applicant.  In administering the estate the respondent made an application to the Federal Court of Australia to determine whether two mortgages granted by the first applicant and his wife over their matrimonial home in favour of the second applicant should be declared void and whether certain other real property was held absolutely by a company in which the first applicant held one of two issued shares.

2. On 21 June 2011, the Federal Court of Australia (Mansfield J) declared that the company held the real property in its own right and that one of the two issued shares in the company vested in the respondent as trustee.  His Honour also declared that the mortgages over the matrimonial home were void as against the respondent.  His Honour made orders granting liberty to the first applicant to purchase the interests, in the matrimonial home and in the property held by the company, which vested in the respondent as trustee.  The applicants appealed to the Full Court of the Federal Court of Australia.

3. On 28 March 2012, the Full Court (Finn, Cowdroy and Flick JJ) dismissed the applicants' appeal.  The Full Court held that the appeal amounted to an attempt to invite the Court to reach a contrary factual conclusion without any discernible error having been committed by the primary judge.  The applicants now seek special leave to appeal to this Court.

4. The application for special leave to appeal raises a number of grounds concerning appellate review of findings of fact, writing requirements under s 29 of the Law of Property Act 1936 (SA), and denial of procedural fairness. There is no reason to doubt the correctness of the decision of the Full Court. The application for special leave does not raise any question of law which would warrant a grant of special leave. Special leave is refused with costs.

5. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
12 December 2012 S.J. Gageler