CATCHWORDS: PRACTICE – SUMMARY JUDGMENT - STRIKING OUT OF DEFENCE – Application for summary judgment pursuant to r 292 UCPR or in alternative, for striking out of certain paragraphs of Further Amended Defence pursuant to r 171
UCPR.
BANKRUPTCY – PROPERTY FOR PAYMENT OF DEBTS – PROTECTED TRANSACTIONS – Whether transfer void pursuant to s120(1) Bankruptcy Act (Cth) 1966 as undervalued transaction – whether market value consideration given for transfer to wife – whether constructive trust in existence.
Bankruptcy Act 1966 (Cth), s 120
Balfour v Balfour [1919] 2 KB 571, considered
Barton v Official Receiver (1986) 161 CLR 75, distinguished Baumgartner v Baumgartner (1987) 164 CLR 137, followed Corke v Corke and the Official Trustee in Bankruptcy (1994)
17 FamLR 698, considered
Green v Green (1989) 17 NSWLR 343, considered
Gissing v Gissing [1971] AC 886, considered
2

Hohol v Hohol [1981] VR 221, considered
Kidner v Secretary, Department of Social Security (1993) 31
ALD 63, followed
Maharaj v Jai Chand [1986] AC 898, considered McVeigh (Trustee of the Bankrupt Estate of Zanella) v Zanella [2000] FCA 1890; FC No 7430 of 2000, 22
December2000, considered
Muschinski v Dodds (1985) 160 CLR 583, followed
In re Abbott (A Bankrupt) [1983] 1 Ch 45, distinguished
Re Clark; Ex parte Beardmore [1984] 2 QB 393, considered
Re Jonton Pty Ltd [1992] 2 Qd R 105, followed
Re Osborn; ex parte Trustee of the property of Osborn v
Osborn (1989) 25 FCR 547, distinguished
Re Sabri; Ex parte Brien v Australia and New Zealand
Banking Group Ltd (1996) 21 FamLR 213, considered
Re Sharpe (a bankrupt); Ex parte the trustee of the bankrupt v Sharpe[1980] 1 All ER 198, considered
Sutherland v Brien (1999) 149 FLR 321, considered
Thorby v Goldberg (1965) 112 CLR 597, considered Victorian Producers’Co-Operative Co Ltd v Kenneth [1999] FCA 1488; FC No 7754 of 1998, 29 October 1999, considered
Worrell, in the matter of Tanter (Bankrupt) v Issitch [1999] FCA 1452; FC No 7007 of 1996, 22 October 1999, considered

COUNSEL: P. McQuade for the Plaintiff
D. Atkinson for the Defendant

SOLICITORS: Tucker & Cowan Solicitors for the Plaintiff
Johnsons Solicitors for the Defendant

[1] ATKINSON J: The plaintiff applied for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules (UCPR). The judgment sought is:

(a)A declaration that the transfer of property, being the payment of $274,731.07 is void pursuant to s 120 of the Bankruptcy Act 1966 (Cth);

(b) An order that the defendant pay to the plaintiff…

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 Clout v Markwell

Details

AGLC: Clout v Markwell [2001] QSC 91
Case: [2001] QSC 91
Decision Date: 4/04/2001

CaseChat Overview and Summary

The plaintiff applied for summary judgment against the defendant, who is the wife of a bankrupt. The application was made under r 292 of the Uniform Civil Procedure Rules (UCPR) or, in the alternative, under r 171 of the UCPR to strike out certain paragraphs of the defendant's Further Amended Defence. The plaintiff sought a declaration that a transfer of property made by the defendant's husband prior to his bankruptcy was void pursuant to s 120 of the Bankruptcy Act 1966 (Cth), and sought orders to recover the property and any proceeds from its sale. The legal issues were whether the transfer of property was void, and whether a constructive trust existed over the property in favour of the defendant. Atkinson J held that the transfer was not void because the defendant had provided consideration of market value for the transfer. Atkinson J further held that a constructive trust existed over the property in favour of the defendant, but this did not affect the provisions of s 120 of the Bankruptcy Act. Atkinson J dismissed the application. Atkinson J held that the defendant had provided consideration of market value for the transfer in the form of domestic services and financial contributions to the household. Atkinson J held that the defendant's argument that she had an equitable interest in the property was arguable, and that it was not necessary for there to be unconscionable behaviour by the bankrupt for a constructive trust to arise. Atkinson J held that the court may declare the existence of a constructive trust, but that the declaration does not create the trust. Atkinson J held that the trustee in bankruptcy was subject to the same equities as the bankrupt and that it would be unconscionable for the trustee to deny the defendant's equitable interest. Atkinson J further held that the plaintiff was not entitled to strike out certain paragraphs of the defendant's Further Amended Defence, but that the defendant was given leave to file a Further Amended Defence.

Orders