Billy Buckle Pty Ltd as Trustee of the Wylde Street Family Trust, in the matter of Lavin (bankrupt) v Lucan
[2017] FCA 1087
•12 September 2017
FEDERAL COURT OF AUSTRALIA
Billy Buckle Pty Ltd as Trustee of the Wylde Street Family Trust, in the matter of Lavin (bankrupt) v Lucan [2017] FCA 1087
File number: NSD 1802 of 2016 Judge: ALLSOP CJ Date of judgment: 12 September 2017 Catchwords: BANKRUPTCY AND INSOLVENCY – assertion that property was held by bankrupt as trustee for family trust – proceedings resolved by parties – parties sought declaration as to legal and beneficial ownership of property – Court prepared to make declaration sought Legislation: Bankruptcy Act 1966 (Cth), s 81G Date of hearing: 12 September 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Mr JD Chard, of Paul Bard Lawyers Counsel for the First Respondent: Mr M Pesman SC with Mr C Alexander Solicitor for the Second Respondent: O’Neill Partners ORDERS
NSD 1802 of 2016 IN THE MATTER OF DOLORES LAVIN, BANKRUPT
BETWEEN: BILLY BUCKLE PTY LTD AS TRUSTEE OF THE WYLDE STREET FAMILY TRUST (ACN 114 658 730)
Applicant/Cross-Respondent
AND: AARON KEVIN LUCAN
First Respondent/Cross-Applicant
REGISTRAR-GENERAL OF NSW
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
12 SEPTEMBER 2017
BY CONSENT, THE COURT DECLARES THAT:
1.The whole of the property contained in Real Property Act 1900 (NSW) folio identifier 14/SP63601, known as 14/22 Wylde Street Potts Point (the Property):
(a)was beneficially and legally acquired by Dolores Lavin (the Bankrupt) on or about 18 December 2007;
(b)was beneficially and legally held by the Bankrupt until the commencement of the bankuptcy of the Bankrupt; and
(c)vested in the Trustee in Bankruptcy pursuant to ss 58, 115(1) and 116(1) of the Bankruptcy Act 1966 (Cth) as and from the date of commencement of the bankruptcy of the Bankrupt.
BY CONSENT, THE COURT ORDERS THAT:
2.The amended consolidated application filed 8 December 2016 be dismissed.
3.The cross-application filed 24 April 2017 be dismissed.
4.As between the applicant/cross-respondent and the first respondent/cross-applicant, any order for costs made in the proceedings which is not yet satisfied as at the date of these orders be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
Before the Court is a matter which concerns the ownership of a property in Wylde Street, Potts Point. The first respondent and cross-applicant is the trustee in bankruptcy of Dolores Lavin. A substantive contention before the Court was the assertion by Ms Lavin and those with whom she has previously dealt and has a relationship, in particular, the applicant, Billy Buckle Pty Ltd that the property was held by Ms Lavin as trustee for the Family Trust in which Ms Lavin’s family, in particular, her father, had some interest. The matter is a matter in bankruptcy.
There was an interlocutory application seeking orders that certain material be declared not admissible pursuant to the terms of s 81G of the Bankruptcy Act 1966 (Cth). That interlocutory application was set down for today, but the parties have resolved the whole proceeding. They have resolved the whole proceeding on the basis of orders which include a declaration, which is consented to, that the property is vested in the trustee in bankruptcy, having been beneficially and legally held by the bankrupt.
The parties recognised that the Court would not make a declaration merely at the request and consent of themselves. And, Mr Pesman SC, appearing with Mr Alexander, has tendered before me a bundle of documents which reveal on their face a proper basis for making the declaration by consent. Those matters are that Ms Lavin purchased the property in 2007 for a substantial sum of money without any identification on either the transfer or contract of sale of any qualification to her ownership. There also exist and are tendered before me contemporaneous documents of prior years which support the contention that Ms Lavin was the beneficial owner of the property. Examples are documentation submitted to the National Australia Bank in 2008 for the borrowing of funds in which Ms Lavin puts the property up as security. And, in that document there is no suggestion that she held the property on trust for any party.
As late as December 2013, Ms Lavin swore affidavits in the Federal Circuit Court as to the question of a stay of proceedings identifying her principal residence as available to her by way of assets to be sold. In the underlying proceedings there are affidavits asserting that Ms Lavin did not hold the property fully beneficially. They are not read today. The parties who consent to this settlement are the parties who had propounded the assertions in those affidavits.
I should add that it is stated by Mr Pesman that there are in existence now documents which purport to be contemporaneous records supporting that position, but they were not documents that were produced upon notice being given by the trustee in bankruptcy under the Bankruptcy Act to provide documents and information and books. It was those documents, amongst others, which were the subject of the application under s 81G of the Bankruptcy Act. In all the circumstances, and considering the matter as a whole and the plain evidence that has been put before me as to ownership of the property, the Court is prepared to make the orders by consent which are those which will resolve fully the proceedings.
Therefore, by consent the Court declares that:
1.The whole of the property contained in Real Property Act 1900 (NSW) folio identifier 14/SP63601, known as 14/22 Wylde Street Potts Point (the Property):
(a)was beneficially and legally acquired by Dolores Lavin (the Bankrupt) on or about 18 December 2007;
(b)was beneficially and legally held by the Bankrupt until the commencement of the bankuptcy of the Bankrupt; and
(c)vested in the Trustee in Bankruptcy pursuant to ss 58, 115(1) and 116(1) of the Bankruptcy Act 1966 (Cth) as and from the date of commencement of the bankruptcy of the Bankrupt.
By consent, the Court orders that:
2.The amended consolidated application filed 8 December 2016 be dismissed.
3.The cross-application filed 24 April 2017 be dismissed.
4.As between the applicant/cross-respondent and the first respondent/cross-applicant, any order for costs made in the proceedings which is not yet satisfied as at the date of these orders be vacated.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 13 September 2017
0
0
1