Combis v De Andrade - [2022] ACTSC 220

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Combis v De Andrade
Citation:	[2022] ACTSC 220
Hearing Dates:	22-24 February, 3 March and 6 May 2022
DecisionDate:	26 August 2022
Before:	Mossop J
Decision:	See [168]
Catchwords:	EQUITY – TRUSTS – Bankruptcy – trustee of bankrupt estate seeks declaration that first defendant has no right or interest in a residential property and an order that it be sold – whether property held on express, resulting or constructive trust for first defendant – consideration of estoppel – unreliable financial records and oral evidence – no equitable interest established – consideration of human rights claim not to have home unlawfully or arbitrarily interfered with – no cause of action to prevent or delay the sale – first defendant’s caveat to be removed and property to be sold by the plaintiff
Legislation Cited:	Australian Human Rights Commission Act 1986 (Cth), Sch 2 Bankruptcy Act 1966 (Cth), ss 77C(1), 116(2)(a) Civil Law (Property) Act 2006 (ACT), s 201 Corporations Act 2001 (Cth), ss 601AB, 601AD(1A) Family Law Act 1975 (Cth), ss 90C, 90D Human Rights Act 2004 (ACT), s 12, Pts 3, 4, 5, 5A Insolvency Act 1986 (UK)
Cases Cited:	Allen v Snyder [297] 2 NSWLR 685 Barca v Mears [2004] EWHC 2170 Baumgartner v Baumgartner (1987) 164 CLR 137 Boensch v Pascoe [2019] HCA 49; 268 CLR 593 Calverley v Green (1984) 155 CLR 242 Currie v Hamilton [1984] 1 NSWLR 687 In re Citro (a bankrupt) [1991] Ch 142 James v Holmes (1862) 45 ER 1266 McGrath v McGrath [2018] ACTSC 148
Texts Cited:	Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) J D Heydon and M J Leeming, Jacobs’ Law of Trusts (Lexis Nexis Butterworths, 2016, 8^th ed)
Parties:	Nick Jim Combis in his capacity as Trustee for the Bankrupt Estate of Roubi De Andrade ( Plaintiff) Bernardo Jose Poege Rebello De Andrade ( First Defendant) Registrar-General of the Australian Capital Territory (Second Defendant)
Representation:	Counsel G Blank ( Plaintiff) D Hassall (First Defendant)
Solicitors Chamberlains ( Plaintiff) Capital Lawyers (First Defendant)
File Number:	SC 222 of 2020

MOSSOP J:

Introduction

The plaintiff is the trustee of the bankrupt estate of Ms Roubi De Andrade. The first defendant is Ms De Andrade’s husband, Mr Bernardo Rebello De Andrade. The second defendant is the Registrar-General of the Australian Capital Territory (ACT).

By Amended Originating Application filed 17 August 2020, the plaintiff sought a declaration that first defendant has “no rights or interest in” a residential property in Griffith (the Griffith property). Alternatively, he sought a declaration that the plaintiff and first defendant have an interest in the property in a ratio determined by the court. He also sought an order that the property be sold and,…

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 Combis v De Andrade

Details

AGLC: Combis v De Andrade [2022] ACTSC 220
Case: [2022] ACTSC 220
Decision Date: 26 August 2022

CaseChat Overview and Summary

The dispute in Combis v De Andrade involves the trustee of a bankrupt estate, the plaintiff, seeking a declaration that the first defendant, Mr De Andrade, has no right or interest in a residential property and an order that the property be sold. The case was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the property was held on an express, resulting, or constructive trust for Mr De Andrade. Additionally, the court considered whether the first defendant's estoppel claim, based on the unreliability of financial records and oral evidence, established an equitable interest in the property. The court also examined whether Mr De Andrade's human rights claim, which argued against the unlawful or arbitrary interference with his home, could prevent or delay the sale of the property.

The court held that no equitable interest had been established by Mr De Andrade, as the financial records and oral evidence provided were unreliable. The court found that the property was not held on trust for Mr De Andrade, and his estoppel claim was unsuccessful. Furthermore, the court dismissed Mr De Andrade's human rights claim, concluding that it did not establish a cause of action to prevent or delay the sale of the property. Consequently, the court ordered that Mr De Andrade's caveat be removed and that the property be sold by the plaintiff.

Orders

Orders of the court

See [168]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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