Burness v Nathan
[2011] FMCA 937
•29 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURNESS & ANOR v NATHAN & ANOR | [2011] FMCA 937 |
| BANKRUPTCY – Section 120 application by trustees – transfer of bankrupt’s interest in former matrimonial home at a time that enlivens s.120 – consideration stated to be a “desire to make a gift” – issue as to whether there was a constructive trust in favour of the First Respondent wife – evidence of breakdown of marriage many years earlier – some evidence of First Respondent’s psychiatric condition and personality – quality of that evidence – Jones v Dunkel considerations – standard of proof – s.120 application successful and orders made accordingly. |
| Bankruptcy Act 1966, ss.116(2), 120, 121 and 160(1)(a) Family Law Act 1975, s.79 |
| Jones v Dunkel (1959) 101 CLR 298 Muschinski v Dodds (1985) 160 CLR 583 at 621 SH & DH (No.1) (2003) FMCAfam 330 Sui Mei Huen v Official Receiver for and behalf of the Official Trustee in Bankruptcy [2008] FCAFC 117 |
| Applicants: | PAUL ANDREW BURNESS & MORGAN GERARD JAMES LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF KAILAI NATHAN |
| First Respondent: | LINDA NATHAN |
| Second Respondent: | REGISTRAR OF TITLES |
| File Number: | MLG 1679 of 2010 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 19 April 2011 |
| Date of Last Submission: | 19 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2011 |
REPRESENTATION
| Counsel for the Applicants: | Mr Harris |
| Solicitors for the Applicants: | Lennon Mazzeo Lawyers |
| The First Respondent: | In person |
| The Second Respondent: | No appearance |
THE COURT DECLARES AND ORDERS THAT:
The transfer to the First Respondent of the registered proprietorship of KAILAI NATHAN in the property situate at 1 Bellbird Avenue, Taylors Lakes and more particularly described in Certificate of Tile 9951 Folio 180 (the Property) on 28 June 2007 is, pursuant to s.120(1) of the Bankruptcy Act 1966, void as against the Applicants.
The Applicants of the one part and the First Respondent of the other part are the beneficial owners of the Property as tenants-in-common in equal shares.
On application (if any) by the Applicants to the Second Respondent the Applicants are to be registered as tenants-in-common in equal shares with the First Respondent in the Property.
The First Respondent deliver up vacant possession of the Property to the Applicants within 60 days of the date of this order.
The First Respondent deliver up all keys for all buildings and improvements on the Property to the Applicants within 60 days of the date of this order.
A warrant of possession issue in respect of the Property in favour of the Applicants, such warrant to lie in the Registry until the filing by the Applicants, not before 31 January 2012, of an affidavit stating that the First Respondent has not given vacant possession of the Property upon which the warrant of possession be issued forthwith to the Applicants.
The Property be sold by Public Auction.
The Applicants are to decide whether or not to set a reserve price for the auction and if set, at what price.
The Applicants have the sole conduct and control of the sale of the Property, and are authorised to make all decisions with regard to the sale such as appointing a Real Estate Agent, appointing solicitors to undertake necessary conveyancing work, choosing the method of sale and setting of the reserve price for any auction.
The Applicants are authorised and empowered to sign on behalf of the First Respondent any contract of sale, discharge of mortgage authority, Transfer of Land or any other documents required to effect a sale of the Property, in the event the First Respondent refuses, fails or neglects to sign such documents within such time as required by the Applicants solicitors.
The First Respondent have liberty to bid at any auction sale of the Property.
The proceeds of the sale of the Property be disbursed as follows:
(a)First, in payment of all selling costs including agent commissions, advertising and marketing expenses, conveyancing and legal costs associated with the sale;
(b)Secondly, in payment of the amount owing to Australia and New Zealand Banking Group Limited pursuant to the registered mortgage of S176742A on the Property;
(c)Thirdly, in payment of the amount owing to Faraday West & Co Pty Ltd pursuant to the registered caveat No. AE012829S dated 22 November 2005 on the Property;
(d)Fourthly, half of the then available proceeds to be paid to the First Respondent, less the costs of this proceeding payable by the First Respondent to the Applicants; and
(e)Fifthly, all remaining proceeds be paid to the Applicants as Trustees of the Bankrupt Estate of Kailai Nathan.
The Applicants cost of this proceeding be paid by the First Respondent to be taxed in default of agreement.
Liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1679 of 2010
| PAUL ANDREW BURNESS & MORGAN GERARD JAMES LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF KAILAI NATHAN |
Applicants
And
| LINDA NATHAN |
First Respondent
| REGISTRAR OF TITLES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the Court on an application, pursuant to s.120 of the Bankruptcy Act 1966 (the Act), by the Applicants who are the Trustees of the bankrupt estate of Kailai Nathan (the Bankrupt), the husband of the First Respondent (hereinafter referred to as ‘the Respondent’).[1] By that application the Applicants seek a declaration that the transfer of the Bankrupt’s registered proprietorship on
28 June 2007 to the Respondent in the property situate and known as
1 Bellbird Avenue, Taylors Lakes (the Property) is void as against the Applicants and seeks an order that the Respondent pay to the Applicants a sum equal to the market value of half of the Property. Alternatively, the Applicants seek a declaration as to their entitlement to be vested as proprietors of the Bankrupt’s share in the Property and an order that an amendment be made by the Second Respondent to give effect to that order. The Applicants also sought the sale of the Property with a view to realising the Bankrupt’s former interest in the Property.
[1] The Applicants abandoned their application pursuant to s.121 of the Act.
At the close of the hearing final written submissions were requested, with a further request for further submissions from the Applicants addressing the issue of whether a constructive trust might exist in favour of the Respondent in respect of the Bankrupt’s former registered interest in the Property at the time of transfer.
The Respondent was unrepresented. The Second Respondent did not partake in the proceedings, but indicated he would be bound by the determination of the Court.
The Respondent’s lack of representation, I fear, may have proved fatal to her position as is discussed in more detail below.
Hereafter a statement of fact is to be taken as a finding of fact unless the context suggests otherwise.
Background
The background to this proceeding has an interesting and convoluted history. It is important to understand that history in order to have context to the hearing in this proceeding.
A sequestration order was made in respect of the Bankrupt on
7 October 2008 by the Federal Magistrates Court in the Sydney Registry. That order was made subsequent to an earlier application by the judgment creditor, Capital Finance Australia Limited, in Melbourne which proved unsuccessful for technical reasons.
The background to the judgment debt which formed the basis of the act of bankruptcy was that the Bankrupt, a gentleman of Indian ethnicity born in Malaysia, purchased a Mercedes Benz motor vehicle for which the judgment creditor provided finance. In obtaining that finance the Bankrupt represented himself as a film director/producer from Bollywood, India. The best that can be said of him in this regard is that he ran, unsuccessfully, for a short time a theatre specialising in the projection of films from India. Having been given possession of the motor vehicle the Bankrupt failed to make any payments as required under his credit contract. Despite significant efforts on the part of the judgment creditor it has failed to locate the motor vehicle and to this day it is unknown who has it. This history is recited to give some indication of the credit of the Bankrupt which is further exposed, in my view, by events that happened later and by the evidence provided by the Respondent and her children at the hearing.
Having been bankrupted, and the Applicants having been appointed Trustees of the Bankrupt’s estate, the next significant development was the oral examination of the Bankrupt by a Registrar in Melbourne pursuant to the provisions of the Act. At that oral examination the Bankrupt refused to answer questions which led to his conduct being referred to a Federal Magistrate in the Melbourne Registry. When the opportunity was again extended to him to answer questions, and he refused, that Federal Magistrate dealt with the Bankrupt for contempt of Court which saw him sentenced to one month’s imprisonment. Having spent approximately 14 days in prison the Bankrupt was released on bail pending an appeal to the Federal Court. That appeal upheld the contempt finding, but relieved him from serving the remainder of his sentence.
In addition to seeking to orally examine the Bankrupt, the Applicants also sought to orally examine the Respondent and their daughter, Sarah Nathan. The matter came before another Federal Magistrate where the Respondent failed to attend, but sought to be excused for ill health.
The daughter, whilst she attended, refused to cooperate with the process before the Court. The full circumstances surrounding this appearance before the Court are unknown to me, save that the cooperation of the daughter was only forthcoming after she was put in the cells for some hours to contemplate her attitude.
The next Court event saw the matter come before me, on which occasion the daughter appeared, but the Respondent did not. Again the Respondent sought to rely on her health as excusing her appearance, but no evidence was presented in support of her ill health. The matter was further adjourned and a bench warrant issued requiring the presence of the Respondent at Court. That warrant was executed and the Respondent was brought before the Court. She complained of ill health and presented a medical report from Professor Green in respect of treatment he had given her very many years earlier for cancer.
The report lacked currency.
I should point out also, the Applicants were alert to the possibility that the Bankrupt, whose real occupation is that of a psychiatric nurse, was paying what appeared to be his full wages into a bank account in the name and control of his daughter. His daughter was under compulsion to produce statements in respect of that account, which she had consistently failed to do.
It is at this stage that the Applicants issued the present proceedings before me, I understand, to try a different tack to fulfil their obligations to the judgment creditor.
It is fair to say that the history of this matter to this time, and the conduct of the all parties, on the face of it, seemed entirely obstructive, contemptuous of the process, and reflective of a concerted effort on the part of the Nathans to frustrate the Applicants.
The Legislative Framework and the Law
Section 120 relevantly provides:
Section 120 Undervalued Transactions
Transfers that are void against the trustees
120(1) A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if:
(a) the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending at the date of the bankruptcy; and
(b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.
…
What is not consideration
120(5) For the purpose of subsections (1) and (4), the following have no value as consideration:
(a) the fact that the transferee is related to the transferor;
(b) if the transferee is the spouse or de facto partner of the transferor – the transferee making a deed in favour of the transferor;
…
(d) the transferee’s love or affection for the transferor;
(e) if the transferee is the spouse, or a former spouse, of the transferor – the transferee granting the transferor a right to live at the transferred property, unless the grant relates to a transfer or settlement of property, or an agreement, under the Family Law Act;
…
The Bankrupt was made bankrupt on 7 October 2008. The transfer of the Bankrupt’s right title and interest in the Property was dated
28 June 2007. It clearly comes within the time that enlivens
section 120 of the Act.
In addition to the above section, for the purposes of this decision, another provision within the Act is relevant; namely, section 116.
It describes properties that are divisible amongst creditors and also the limitation as to what properties may be divisible. In respect of the latter, section 116(2) is relevant and states:
Limitations on divisible property
116(2) Subsection (1) does not extend to the following property:
(a) property held by the bankrupt in trust for another person;
…
Section 116(2)(a) is relevant because the facts set out below raise the question of whether there was a constructive trust in favour of the Respondent; although it was not a position expressly advocated by the Respondent, but one squarely raised from the evidence discussed below.
The question of constructive trusts in the context of bankruptcy proceedings is considered in a number of cases. The more recent of which is the Full Court decision in the Federal Court in Sui Mei Huen v Official Receiver for and on behalf of the Official Trustee in Bankruptcy[2]. Although there are similarities in the facts of the case before me and Sui Mei Huen; namely arrangements made after marriage breakdown, there are very significant distinctions on the facts between the two which, for reasons set out below, precludes a result favourable to the Respondent.
[2] [2008] FCAFC 117
The Evidence
At the hearing the Respondent, her daughter Sarah and her son Sanjay gave evidence. Despite the earlier history of this proceeding, with particular emphasis on the conduct of the Bankrupt, the failure of the Respondent to partake in the Court process and the manifest belligerence of their daughter, I was very surprised by the evidence that came out in the hearing. As a consequence, on balance, I am of the view that there is a ring of truth about much of their evidence that explains, and perhaps exculpates, past behaviour on the part of the Respondent and the daughter, Sarah.
Again by way of context, before considering the detail, I am satisfied, after hearing from the Respondent and her children that they have experienced a nightmarish existence at the hands of the Bankrupt. I am also satisfied that from the children’s perspective they have had a very difficult childhood - in the words of Sanjay, “a very dysfunctional childhood” - which circumstance is attributable, I am sure, to two dominant aspects. First is that, although no formal medical proof was put before the Court, the wife has a number of psychiatric issues centred around a possible diagnosis of bipolar syndrome. Although no formal proof of this condition was before the Court, I do accept her evidence that she met the Bankrupt while she was in the care of a psychiatric institution and where he was working as a psychiatric nurse. Secondly, she describes her life with the Bankrupt as one characterised by daily abuse, sometimes physical but always verbal.
I have no reason not to accept her evidence in this regard. She is also, in my view, an obviously fragile personality, which assessment is confirmed by her children’s description of her and the physical circumstances in which she lives; namely extreme clutter as she is a hoarder.
The Respondent’s son, Sanjay, was called to give evidence in the circumstance where he was not anticipating he would need to. He had to rush from work to be at Court. It is not unfair to describe his evidence as hesitant and that he found the experience embarrassing because it demanded of him, in front of his mother, to give a critical assessment of her and the circumstances in which she lives. It was also troubling for him to give evidence because of the recall required of him of events preferred forgotten. Clearly he sees his childhood as troubled and is most anxious to put it behind him and, as he would say, make a new life and career for himself.
The evidence of the Respondent’s daughter, Sarah, supported also by the Respondent, was that she has experienced difficulties in her own life, most recently manifested in substance abuse. The dysfunctional aspect of her family, I am satisfied, gives some explanation to her sometimes belligerent attitude to the Court and the process she found herself inveigled in against her will.
Be that as it may, at the end of all the evidence, I am satisfied the Respondent spoke the truth about significant events, as did her son Sanjay. In respect of Sarah, whilst I do not accept that she was truthful in all regards, out of a sense of divided loyalties between her mother and her father, she spoke the truth about the nature of her parents’ marital relationship.
The Respondent gave a history that the Property, as vacant land, was purchased in 1992 and that after funding the building of the dwelling they commenced living as husband and wife in the Property in
March 1993. They lived there until 1997 when they went to live in Cairns, renting the Property out whilst away. They separated in March 1997 whilst in Cairns, with the Respondent returning to live in rented premises in Melbourne until the Property became vacant at which time she moved back in with the children and has resided there ever since. The Bankrupt remained in Queensland for a while. Her evidence was that they have lived separately and apart since March 1997, and I accept her evidence. They, however, have not divorced, nor has she or the Bankrupt initiated any proceeding in respect of the Property under the Family Law Act 1975.
From the Respondent’s understanding, which I accept, the Bankrupt has never lived in the Property since March 1997. However, the evidence of both children was that the Bankrupt has come back and lived for short periods of time in the Property whilst the Respondent was away. It seems that she is prone to flights of fancy and takes it into her head, as a spontaneous gesture, to travel to various places for holidays. During these times the Bankrupt is allowed in by the children. The last known time he did so was after his release from prison when the Respondent was not in attendance at the Property.
The children were reluctant to disclose this fact to the Respondent in open Court and I accept their reluctance as genuine and their evidence as true. I am satisfied that in any real sense the husband has not used the Property as his principal place of residence since early 1997 when they left to go to Cairns. He does, it appears, still use the address for correspondence, much against the wishes of the Respondent.
The Respondent sought to rely on an agreement made on
3 November 1997 (the November agreement) which purported to evidence the irretrievable breakdown of the marriage and an agreement “that [the Bankrupt] is to transfer the property at 1 Bellbird Avenue, Taylors Lakes to [the Respondent] in settlement of all indebtedness to [the Respondent]”. The November agreement also specified that the Property was to be kept on trust for the children and that the Bankrupt would continue to pay the mortgage secured over the Property.
The Applicants invite me to find that this document is one of recent creation. Whether it is or not, in my view, it does not help the Respondent in establishing the existence of a constructive trust at the time of transfer, which incidentally was nearly 10 years after the alleged agreement.
There was another document presented by the Applicant as supportive of her separation in 1997; namely, a letter from Centrelink confirming the payment to her of a family allowance based upon the fact she was a single parent at that time.
For reasons already expressed, I am satisfied that the parties have been separated since March 1997 (or at the very latest, November 1997) but the mere fact of separation is not conclusive that thereafter a constructive trust in her favour can be assumed. There are other indicia to be satisfied and further considerations before that finding can be made.
The evidence showed that after separation, the Bankrupt continued to pay the mortgage, drew down further on the mortgage and generally exercised financial control over how the Property was used as a security for loans. During the time after separation – after the November agreement - and before the transfer, the Bankrupt secured loans over the Property to fund at least one business venture and the Respondent necessarily executed documentation to facilitate that being secured against the Property. The Respondent says she has no memory of executing these documents, although acknowledges her signature on them. She states she, in effect, was subservient to the Bankrupt and unable to resist his demands in this regard.
Her children also confirmed her compliant nature. There may be some basis for this, but I cannot, without appropriate independent evidence of the Respondent’s psychiatric condition give much weight to her assertions in this regard. She also gave evidence that she complied with his requests under duress with the threat by him that should she not sign these documents he would stop paying the mortgage and when the children were younger, threatened to take them away from her.
Such threats, in my view, do not amount to duress to the degree that would expunge her consent freely given.[3] The situation might have been different if more independent and expert opinion was before the Court as to the nature of the Respondent’s personality and of any psychiatric disability she may suffer that would have elevated such threats to a level of coercion that would confirm her agreement to the loans was not freely given.
[3] See SH and DH (No.1) (2003) FMCAfam 330 for a discussion to duress in a matrimonial context.
The Respondent’s evidence as to what was the indebtedness referred to in the November agreement was very vague. There was a suggestion that it might relate to a small inheritance the Respondent received that was used in the purchase of the Property, or later the suggestion that it might relate to repayment of a $20,000 loan the husband used, but it is to be noted that the loan post-dated the November agreement and cannot form part of the “indebtedness” referred to. In any event, the amounts proffered would not have amounted to a transfer in
November 1997 for a consideration equivalent to market value. It was difficult for the Respondent to give any persuasive evidence as to how the indebtedness to her arose and how much it was.
When questioned about her signature to the transfer, she was unable to recall it or the circumstances in which it happened. I am satisfied it was executed by the Bankrupt and the Respondent at or near the time of registration (28 June 2007), which I am further satisfied, on balance, was at a time it was evident to the Bankrupt that he was facing the potential of bankruptcy.
The continual payment of what is now only a relatively small mortgage by the Bankrupt, in my view, is inconsistent with the Respondent having sole proprietorship of the Property, and her explanation for it was vague and confused. I note that the Bankrupt has paid most, if not all, of the mortgage commitments secured over the Property since it was purchased in 1992. In saying the Respondent was vague and confused, I do not wish to be taken as suggesting the Respondent was not honest in her answers. Without question, her demeanour and style in the witness box was consistent with someone lacking full capacity to recall events and provide explanations. The Applicants suggest that this is indicative of her complicity. Either way, her evidence was not of assistance to the prosecution of an argument centred on the existence of a constructive trust. Consequently, her evidence carried little weight on vital issues. Whether his continual payment of the mortgage was recognition of the debt the Bankrupt incurred and should be taken as payment of that debt I am unable to find.
There is also evidence that the Respondent in 2005 was a co-signatory to loan documents which represented both the Respondent and the Bankrupt as joint proprietors of the Property. This representation is clearly contrary to the expressed understanding of proprietorship set out in the November agreement.
A material witness able to be called, but was not, is the Bankrupt.
He is a witness capable of clarifying the circumstances surrounding the creation of the November agreement, the use, or not as the case may be, of the Property by the Bankrupt to secure loans and as a place of accommodation, not to mention an address for the Bankrupt’s correspondence. He would have been able, if called, to explain why it was that service of Court documents were effected on him personally at the Property at times it was not apparent the Respondent was absent on holidays. The failure to call him leads me to infer that had he been called, his evidence may not have been of assistance to the Respondent’s case.[4]
[4] See Jones v Dunkel (1959) 101 CLR 298
Was there a constructive trust at the time of the transfer?
On the face of it, the consideration expressed in the transfer is caught by the operation of s.120. The only protection afforded to the Respondent would be a finding that at the time of transfer, notwithstanding the expressed consideration stipulated in the transfer, there existed in favour of the Respondent a constructive trust whereby the Bankrupt was holding his registered interest in the Property on trust for her.
In Sui Mei Huen the Full Court of the Federal Court considered the situation of a wife whose husband became bankrupt two years after an agreement was entered into which gave 100% of one of two properties to the wife. The parties divorced and applied to the Family Court for property orders to give effect to their agreement, but the Court did not do so because the orders were too vague. Further the Court was not able to make a finding that the proposed orders represented a just and equitable distribution of entitlements. Some months later the husband became bankrupt. It is to be noted that since separation, the wife paid all the outgoings on the property; including the mortgage and rates. She had also done improvements to it at her expense.
When the matter was heard at first instance in this Court, the Federal Magistrate found the agreement invalid, but should he be wrong in that regard, he found it was void as against the trustee of the bankrupt’s estate pursuant to s.120 of the Act. The Federal Magistrate also rejected the argument that there was a constructive trust in favour of the wife.
On appeal, the wife argued that there was a constructive trust in her favour, which argument was accepted by the Full Court. In finding there to be a constructive trust, the Full Court held that any presumption in favour of an equitable joint tenancy where the parties are registered as joint tenants can be rebutted in circumstances that show the clear intention of the parties to transfer one party’s interest to the other and where not to do so would be characterised as unconscionable. In determining the intention at the relevant time, namely the time of the agreement, the Court looked to subsequent conduct, as well as the parties’ circumstances at the time, to determine that intention. In furtherance of the parties’ agreement they applied, albeit unsuccessfully, to gain the sanction of Family Court orders and they also after the execution of the agreement lived as it would require of them; in the wife’s case, to assume responsibility for all outgoings on the property. Because the Court could find with confidence that it was the intention of the parties to give 100% of the property to the wife, then it would be unconscionable not to impose a constructive trust in favour of the wife having regard to how they lived after the agreement, including her payments of all outgoings and the costs of renovations.
In the case before me there is much that is inconsistent with the parties’ alleged intention to transfer the Bankrupt’s interest in the Property.
The facts of this case that distinguish it from Sui Mei Huen are:
·Whilst the basis for the agreement is said to be the irretrievable breakdown of the marriage in 1997, they have never divorced.
·They have never sought appropriate orders under s79 of the Family Law Act 1975.
·The Bankrupt has continued to pay the mortgage secured over the Property.
·The Bankrupt, after the execution of the November agreement, has continued to use the Property as security for loans taken out in pursuit of his own business interests - an action contrary to the Respondent’s position that the Bankrupt held his registered interest in the Property at the time of the registered transfer on a constructive trust in favour of her.
·The Respondent has joined with the Bankrupt after the execution of the November agreement in representing to finance providers that they have a joint shared interest in the Property and have signed security documents evidencing their joint endeavour to obtain finance by using the Property as security.
·The Bankrupt continues to use the Property from time to time for his accommodation and a place to which his correspondence is sent.
·The instrument of transfer describes the consideration for the transfer as “desire to make a gift”. This is clearly inconsistent with that expressed reason in the November agreement which was executed almost 10 years earlier.
Further, in the circumstances, although the consequences are certainly difficult for the Respondent, I am not persuaded that it would be unconscionable for the Applicants to be declared beneficial owners of the Property as tenants-in-common on the one part with the Respondent on the other part.
Conclusion
Whilst I have considerable sympathy for the difficulties the Respondent now finds herself in, and much condemnation is rightly directed at the Bankrupt for his conduct giving rise to this proceeding, and it would appear throughout the marriage, I am mindful of the Full Court’s recitation with approval of His Honour Deane J’s comment in Muschinski v Dobbs that:
“Notions of what is fair and just are relevant but only in the confined context of determining whether conduct should, by reference to legitimate processes of legal reasoning, be characterized as unconscionable for the purposes of a specific principle of equity whose rationale and operation is to prevent wrongful and undue advantage being taken by one party of a benefit derived at the expense of the other party in special circumstances of the unforseen and premature collapse of a joint relationship or endeavour”[5]
[5] (1985) 160 CLR 583 at 619
The onus of proof in this case falls to the Respondent. Although I found her a credible witness, her evidence was very deficient and, on balance, she has failed to satisfy her onus. Accordingly, for the reasons set out above, I am not persuaded that at the time of the transfer of the Bankrupt’s interest in the Property to the Respondent, a constructive trust subsisted in respect of that interest in favour of the Respondent. Section 116(2)(a) of the Act is not enlivened and the Property is not excluded from consideration as a divisible Property for the benefit of creditors.
Accordingly, I shall make the orders sought by the Applicants.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 29 November 2011
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