Cant v Piva - [2009] FMCA 1134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CANT v PIVA & ANOR

[2009] FMCA 1134

BANKRUPTCY – Trustee application asserting half interest in property – bankrupt and bankrupt’s wife asserting property subject to trust in favour of wife – document evidencing trust ambiguous.

Bankruptcy Act 1966, ss.120, 121

Applicant:

ANTHONY ROBERT CANT

First Respondent:

SANDRA PIVA

Second Respondent:

REGISTRAR OF TITLES

File Number:

MLG 149 of 2007

Judgment of:

Burchardt FM

Hearing date:

11 September 2009

Date of Last Submission:

21 September 2009

Delivered at:

Melbourne

Delivered on:

20 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Moller

Solicitors for the Applicant:

Lennon Mazzeo

Counsel for the Respondent:

Mr M Galvin

Solicitors for the Respondent:

O’Donnell Salzano Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 149 of 2007

ANTHONY ROBERT CANT

Applicant

And

SANDRA PIVA

First Respondent

REGISTRAR OF TITLES

Second Respondent

REASONS FOR JUDGMENT

The applicant, Mr Cant, is the trustee in bankruptcy of

Romano Anthony Piva. The relief he now seeks is a declaration that a transfer of land registered on 15 August 2005 from Mr Piva to his wife, the first respondent, is void as against the trustee. He further seeks a declaration that he is entitled to be vested as proprietor of a half share of the property described in the Certificate of Title, Volume 4798 Folio 522, prior to the interest of that transfer.
Less ambiguously, the property is in Bent Street Brighton.
Both Mrs Piva and her bankrupt husband assert that:
a)the property was at all times held on trust for Mrs Piva and;
b)Mr Piva was not insolvent at the time of the transfer.
For the reasons that follow, I think that the property was not held on trust for Mrs Piva and that Mr Piva was indeed insolvent at the time of the transfer.
It follows that the trustee, the applicant, should have the relief that he seeks.
It should be noted that notwithstanding this conclusion, there are a number of other matters still extant, most particularly the first respondent’s claim to relief under what is described as the equity of exoneration. I shall return to those matters later.

The Facts

It is common cause that on 23 November 1996 Mrs Piva entered into a contract of sale to purchase a property known as 18 Bent Street, Brighton, and a further contract to purchase 20 Bent Street, Brighton. The latter property has since been sold and is of no moment in these proceedings.
It has been asserted, although the matter has not yet been tested in evidence, that all the moneys used to purchase these properties emanated from Mrs Piva or her parents.
On 23 January 2003, Mrs Piva separated temporarily from her husband and went to live with a Mr Wallace Cameron.
On 26 March 2003, Mrs Piva entered into a contract to purchase from Andrea Ziegler a property in Orrong Road, Toorak, for in excess of

$7 million. She was assisted in this regard by a cheque from

Mr…

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 Cant v Piva

Details

AGLC: Cant v Piva [2009] FMCA 1134
Case: [2009] FMCA 1134
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of Cant v Piva before the Federal Magistrates Court involved a dispute over the ownership of a property in Brighton. The applicant, Mr. Cant, the trustee in bankruptcy of Mr. Piva, sought a declaration that a transfer of the property from Mr. Piva to his wife, Mrs. Piva, was void. The respondents, Mrs. Piva and the Registrar of Titles, argued that the property was held on trust for Mrs. Piva and that Mr. Piva was not insolvent at the time of the transfer. The legal issues before the court were whether the property was held on trust for Mrs. Piva and whether Mr. Piva was insolvent at the time of the transfer. The court found that the property was not held on trust for Mrs. Piva and that Mr. Piva was indeed insolvent at the time of the transfer. The court reasoned that the document evidencing the trust was ambiguous and that the primary intention of the parties was to transfer the property to Mr. Piva to defeat any claim by Mrs. Piva's creditors. The court also found that by 2005, Mr. Piva's financial affairs were in difficulty and he was not solvent at the time of the transfer. The court concluded that the transfer back to Mrs. Piva was ineffective and that the trustee should have the relief that he seeks.

The final orders of the court were that the transfer of the property from Mr. Piva to Mrs. Piva was void and that the trustee in bankruptcy of Mr. Piva was entitled to be vested as proprietor of a half share of the property. The court noted that there were still other matters extant, such as the first respondent's claim to relief under the equity of exoneration, which may require further hearing.

Orders