Brien, R.C. v Kallifidas, A - [1992] FCA 48

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES.DISTRICT REGISTRY ) No. NSW G43 of 1991
GENERAL DIVISION )

BETWEEN: RICHARD CAMPBELL BRIEN
Applicant

m: ?&ITON10 KALLIFIDAS

First Respondent

ASPASIA KALLIFIDAS

Second Respondent

CORAM: Jenkinson J.
PLACE : Melbourne
W: 20 February, 1992

MINUTES OF ORDER

THE COURT DECLARES THAT:

The disposition of property effected by the execution, delivery and registration of the instrument of title numbered M620873V in the Office of Titles of the land comprised in certificate of title volume 8057 folio 839 was a settlement of property which by virtue of the provisions of section 120(l)(a) of the Bankru~tcv Act 1966 is void as against the applicant the trustee in the bankruptcy numbered in this Court NB1352/88 of the first-named respondent Antonio Kallifidas.

NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

Further consideration of the proceeding (including the costs of the proceeding to and including this day and of the entry of this order) be adjourned to a date to be fixed.

IN THE FEDERAL COURT OF AUSTRALIA )
MEW SOUTHWUES DISTRICT REGISTRY

) NO. NSW G 43 of 1991
GENERAL DIVISION )

BETWEEN: RICHARD CAKPBELL BRIEN
Applicant

AND: ANTONIO KALLIFIDAS

First Respondent

AND: ASPASIA KAtLIFIDAS

Second Respondent

C O W : Jenkinson J.
PLACE : Melbourne
DATE :
- 20 February, 1992

REASONS FOR JUDGMENT

Proceeding for a declaration that a disposition of property is void as against the applicant, pursuant to s.120(1) of the Bankruptcv Act 1966, and for consequential relief.

The first-named respondent (to whom I shall refer as "the husband") is a bankrupt and the applicant is the trustee in that bankruptcy. A sequestration order was made against the husband's estate on 22 August 1988. Within 2 years before the commencement of the bankruptcy the husband had by execution and delivery of an instrument of transfer to hls wife, the second-named respondent, enabled her to become, by registration of that transfer the registered proprietor of his fee simple estate in the land comprised in certificate of

title volume 8057 folio 839 . That is the dlspositlon of
property impugned by the trustee.

The husband and the second-named respondent ("the wife") were married on 16 August 1958 and have always lived together. The land comprised in certificate of title volume 8057 folio 839 ("the land") was acquired in January 1964 by purchase and the husband became the registered proprietor. Husband and wlfe and their two children lived in the house on the land, the address of which is 5 Peel Street Newport, in the State-of Victoria until the daughter, Dina, married John Tslgaris ("the son-in-law") at some time before 1985. The other three still live there. In April 1985 the husband executed in favour of A.G.C. (Advances) Ltd. an instrument of mortgage of the land to secure a loan by that company to the son-in-law of more than $55,000, which was said to have been applied in the purchase by…

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.

Continue reading Brien, R.C. v Kallifidas, A

Details

AGLC: Brien, R.C. v Kallifidas, A [1992] FCA 48
Case: [1992] FCA 48
Decision Date: 20 Feb 1992

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Brien, R.C. v Kallifidas, A involved a dispute regarding a disposition of property by the husband, Antonio Kallifidas, to his wife, Aspasia Kallifidas. The applicant, Richard Campbell Brien, the trustee in the bankruptcy of Antonio, sought a declaration that the disposition was void as against the applicant under the Bankruptcy Act 1966. The central legal issue was whether the disposition was made for valuable consideration and if the wife was a purchaser in good faith. The court found that the disposition was for valuable consideration, as the wife's contribution to repaying the husband's debt was substantial. However, the court also found that the wife was not a purchaser in good faith, as she knew or suspected that the husband had additional debts that could affect her interest in the property. The court declared the disposition void as against the applicant and adjourned further consideration of the proceeding.

Orders