Ashton, Andrew Craig v Prentice, Maxwell William - [1998] FCA 1583

ANDREW CRAIG ASHTON v. MAXWELL WILLIAM PRENTICE
MAXWELL WILLIAM PRENTICE (Cross Claimant) v. ANDREW CRAIG ASHTON (First Cross Respondent), ERIC ABRAHAM JURY (SNR) (Second Cross Respondent), SONIA SADIE JURY (Third Cross Respondent), WILLIAM ABRAHAM JURY (Fourth Cross Respondent) and HOUDA JURY (Fifth Cross Respondent)
No. NG 8183 of 1997
FED No. 1583/98
Number of pages - 11
Bankruptcy

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

HILL J

Bankruptcy - lease granted by applicant to bankrupt and bankrupt's family where property the subject of lease had been transferred from bankrupt to applicant - transfer declared void as against trustee - lease granted after commencement of bankruptcy but prior to declaration of void transfer - lease not a sham - whether lease void as against trustee - discussion of sections 115 and 121 Bankruptcy Act 1966 (Cth).

Bankruptcy Act 1924 (Cth) - ss 52(b), 94, 95, 96, 96A, 96B

Bankruptcy Act 1966 (Cth) - ss 58, 115, 116, 120, 121, 122,

Fraudulent Conveyances Act 1571 (Eng) (13 Eliz 1, c 5)

Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 cited

Snook v London & West Riding Investments Ltd [1967] 2 QB 786 cited

Higgins v The York Buildings Company [1740] 2 Atk 107; 26 ER 467 referred to

Ideal Bedding Company, Limited v Holland [1907] 2 Ch 157 cited

PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 referred to

Brady v Stapleton (1952) 88 CLR 322 cited

Morewood v South Yorkshire Railway & River Dun Co (1858) 3 H & N 798 cited

Barton v Official Receiver (1984) 4 FCR 380 at 386, 389 and 397 referred to

Baker v Official Trustee in Bankruptcy (unreported, Full Federal Court,

Burchett, Ryan and Carr JJ, 3 August 1995) distinguished

In Re Pollitt; Ex Parte Minor [1893] 1 QB 455 cited

In Re Gunsbourg [1920] 2 KB 426 discussed, distinguished

Re Aley; Ex parte Sweeney & Aley (1996) 63 FCR 294 cited

SYDNEY, 7-9 September, 13 and 15 October, 16 and 20 November 1998 (hearing), 11 December 1998 (decision)

#DATE 11:12:1998

Counsel for the Applicant and
Cross Respondents:
Mr A J McQuillen
Solicitor for the Applicant and
Cross Respondents:
Duker & Associates
Counsel for the Respondent and
Cross Claimant:
Mr W H Nicholas QC,
Mr J A Halley, Mr J E Marshall
Solicitor for the Respondent and
Cross Claimant:
Clayton Utz

THE COURT DECLARES THAT:

1. The transfer by the second cross respondent pursuant to a contract for the sale of land dated 8 August 1995 of his right, title and interest in the house and property at 4 Molloy Avenue, South Coogee, New South Wales, being folio identifier 15/247151, on or about 11 August 1995 to the first cross respondent and the said contract are void as against the cross claimant.

2. The purported residential tenancy agreement between the first cross respondent (as landlord) and the second, third and fourth cross respondents (as tenants) dated 1 July 1997, and purporting to grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 1583
Decision Date: 11 December 1998

CaseChat Overview and Summary

Ashton and Prentice were involved in a legal dispute that was brought before the court. The primary issue was the ownership of a property located at 4 Molloy Avenue, South Coogee, New South Wales, identified as folio 15/247151. The court needed to determine the rightful registered proprietor of the property and address related matters concerning the lease and mortgage of the property. The dispute also involved the payment of a sum of money by the first cross-respondent to the cross-claimant, and the delivery of possession of the property to the cross-claimant by the second to fifth cross-respondents.

The court examined the legal principles surrounding the registration of property under the Real Property Act 1900 (NSW) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). It considered the implications of bankruptcy and the effect on property titles. The court also evaluated the evidence and submissions from both parties to determine the rightful owner of the property and the obligations of the parties involved. The court found that Maxwell William Prentice, as the Trustee of the Estate in Bankruptcy of Eric Abraham Jury, was the rightful registered proprietor of the property. The court ordered the necessary amendments to the property's registration and directed the second to fifth cross-respondents to deliver possession of the property to the cross-claimant. Furthermore, the court ordered the first cross-respondent to pay a specified sum to the cross-claimant and directed the cross-claimant to pay a sum to certain individuals before certain orders could be executed.

The court issued several orders to give effect to its findings. It directed the first cross-respondent to pay a sum to the cross-claimant and instructed the Registrar-General to amend the property's registration and issue a new certificate of title. The court also ordered the second to fifth cross-respondents to deliver possession of the property to the cross-claimant and granted leave to the cross-claimant to apply for further orders if necessary. Additionally, the court ordered the first cross-respondent to pay the cross-claimant's costs of the proceedings. The operation of certain orders was stayed to allow for the submission of any further arguments or orders by the Registrar-General.

Orders

Orders of the court

1. The first cross respondent execute forthwith a direction to pay in the form annexed hereto and marked "A"

2. The respondent/cross claimant serve a copy of the amended application and cross claim together with a copy of the reasons for judgment on the amended cross claim and with respect to the lease on the Registrar-General within 7 days of the date of these orders.

3. Subject to the cross claimant first delivering to Robert Stewart Anderson and Wayne Scott Hibbert a bank cheque in the sum of $345,000 and interest accrued to the date of payment together with a duly executed form of the direction to pay referred to in order 1 above, the Registrar General of the Land Titles Office pursuant to s 138 of the Real Property Act 1900 (NSW) and s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW):

(a) amend the recordings on folio identifier 15/247151 such that the Registered Proprietor is:

"Maxwell William Prentice as Trustee of the Estate in Bankruptcy of Eric Abraham Jury (No. NSW 2578 of 1997)"

and remove any reference to the first cross respondent as registered proprietor;

(b) issue a new Certificate of Title recording

"Maxwell William Prentice as Trustee of the Estate in Bankruptcy of Eric Abraham Jury (No. NSW 2578 of 1997)"

as the registered proprietor;

(c) make the alterations to the Register referred to in orders 2(a) and (b) above without affecting any recording in relation to registered mortgage O 469278G; and

(d) deliver the Certificate of Title referred to in order 2(b) above to Robert Stewart Anderson and Wayne Scott Hibbert, care of their solicitors, PW Smyth King & Co of 122 Castlereagh Street, Sydney, within 7 days of it being issued.

4. The operation of order 3 be stayed until 4.00 pm on 13 January 1999.

5. The matter be stood over until 9.30 am on 13 January 1999 to allow the Registrar-General to make any submissions he may wish to make concerning order 3 or to submit to any order the Court may make other than as to costs.

6. The second to fifth cross respondents deliver up possession to the cross claimant of the house and property at 4 Molloy Avenue, South Coogee, New South Wales, being folio identifier 15/247151 on or before one month after the making of these orders.

7. In default of the second to fifth cross respondents complying with order 6 above, the cross claimant be given leave to forthwith file in the Registry and issue a writ for possession in respect of the house and property at 4 Molloy Avenue, South Coogee, New South Wales, being folio identifier 15/247151.

8. The first cross respondent pay the cross claimant's costs of the cross claim including all the cross claimant's costs of bringing the proceedings, including the application, to court but that there be no order as to the costs of the application save so far as they are included in the cross claimant's costs of bringing the proceedings to Court.

9. Liberty be given to the cross claimant to apply to the Court for such further orders as may be required to give effect to these declarations and orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Counsel for the Applicant and Cross Respondents:	Mr A J McQuillen
Solicitor for the Applicant and Cross Respondents:	Duker & Associates
Counsel for the Respondent and Cross Claimant:	Mr W H Nicholas QC, Mr J A Halley, Mr J E Marshall
Solicitor for the Respondent and Cross Claimant:	Clayton Utz