Dixon v Riquero - [2004] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIXON v RIQUERO & ANOR

[2004] FMCA 173

BANKRUPTCY – Where respondents’ real property vested in applicant trustee pursuant to s.58(1) Bankruptcy Act – where trustee did not perfect title – where applicant lodged caveat on title – where respondents discharged bankrupts – where lapsing notice served on applicant – where respondents exchanged contracts for sale with third party – where applicant offered to withdraw caveat on condition that proceeds of sale were paid to him – whether proceeds of sale of property also vested in Trustee – whether respondents can invoke defence of laches – whether the discharge of bankrupts affected title – whether, through his conduct, the applicant acquiesced and gave up rights to the property – whether estoppel will run.

Bankruptcy Act 1966, ss.58(1), 116, 134

Gosden & Anor v Dixon & Anor (1992) 107 ALR 329
Adsett v Berlouis (1992) 37 FCR 201
Walsh v Alexander (1913) 16 CLR 293
Hooper v ANZ [1996] ANZ ConvR 400
Butler v Fairclough & Anor (1917) 23 CLR 78
Orr v Ford (1988-1989) 167 CLR 316
O’Brien v Sheahan [2002] FCA 1292
Sheahan v O’Brien & Anor [2003] HCATrans 308

Ford & Lee, Principles of the Law of Trusts (3^rd ed, 1996)

Applicant:

THOMAS WILLIAM FREDERICK DIXON AS TRUSTEE OF THE PROPERTY OF JUAN RIQUERO AND NANCY RIQUERO, BANKRUPTS

First Respondent:

JUAN RIQUERO

Second Respondent:

NANCY RIQUERO

File No:

SZ 2414 of 2003

Delivered on:

29 March 2004

Delivered at:

Sydney

Hearing date:

9 March 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

Roxburgh & Co

Counsel for the Respondent:

Mr M Cohen

Solicitors for the Respondent:

D. La Rosa, Izzo & Co

ORDERS

The Court declares that the proceeds of sale of the property 1/45-47 Bartlet St Canley Vale described in Certificate of Title Folio Identifier 1/SP 8504 vests in the applicant pursuant to the provisions s.58(1) Bankruptcy Act.
The Court orders that the respondents pay to the applicant the net proceeds of sale currently held in the trust account of Messrs D. La Rosa Izzo & Co forthwith.
The respondents pay the applicant’s costs to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2414 of 2003

THOMAS WILLIAM FREDERICK DIXON AS TRUSTEE OF THE PROPERTY OF JUAN RIQUERO AND NANCY RIQUERO, BANKRUPTS

Applicant

And

JUAN RIQUERO

First Respondent

NANCY RIQUERO

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Thomas William Frederick Dixon the trustee of Juan Riquero and Nancy Riquero who became bankrupt on

19 November 1992 on the basis of a creditor’s petitions filed by the Water Board. Both bankrupts were discharged by operation of law on or about 30 January 1996. At the date of bankruptcy the bankrupts were the registered proprietors of a property known as 1/45-47 Bartlet St Canley Vale in the state of New South Wales being the whole of…

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 Dixon v Riquero

Details

AGLC: Dixon v Riquero [2004] FMCA 173
Case: [2004] FMCA 173
Decision Date: 29 March 2004

CaseChat Overview and Summary

Dixon has brought an application against Riquero in the Federal Circuit Court of Australia seeking a declaration that the proceeds from the sale of a property at 1/45-47 Bartlet St, Canley Vale vest in the applicant pursuant to the Bankruptcy Act. The respondents are contesting the application. The dispute centres around the ownership of the proceeds from the sale of the property, which is currently held in trust by Messrs D. La Rosa Izzo & Co. The primary legal issue before the court was whether the Bankruptcy Act applied in a way that entitled the applicant to the proceeds of sale. The court held that the Bankruptcy Act applied to the proceeds of sale, and that they were assets of the bankrupt estate, which vested in the applicant. As such, the court made an order that the proceeds vest in the applicant and that the respondents pay the proceeds to the applicant forthwith. The court also ordered that the respondents pay the applicant’s costs in accordance with the Federal Court Act and Rules.

Orders

Orders of the court

The Court declares that the proceeds of sale of the property 1/45-47 Bartlet St Canley Vale described in Certificate of Title Folio Identifier 1/SP 8504 vests in the applicant pursuant to the provisions s.58(1) Bankruptcy Act.

The Court orders that the respondents pay to the applicant the net proceeds of sale currently held in the trust account of Messrs D. La Rosa Izzo & Co forthwith.

The respondents pay the applicant’s costs to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

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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