Draper v Official Receiver - [2005] FMCA 1371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRAPER & ANOR v OFFICIAL RECEIVER & ANOR

[2005] FMCA 1371

BANKRUPTCY – Application that Official Trustee convey interest in land forming part of bankrupt estate – allegation of express or resulting trust – equitable estoppel said to arise from delay in realising interest in real property.

Bankruptcy Act 1966, (Cth) ss.149; 133; 116(2)(a)
Law of Property Act 1936; ss.29(1), 29(2)

Sistrom v Urh 117 ALR 528
O’Brien v Shehan [2002] FCA 1292
Draper & Anor [2004] FMCA 423
Draper v Tragauer [2004] FCA 1710
Jones v Dunkel (1959) 101 CLR 298
Calverley v Green (1984) 155 CLR 242

Applicants:

KEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER

Respondents:

PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER &
BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER

File Number:

ADG 260 of 2003

Judgment of:

Lindsay FM

Hearing date:

14 & 15 February 2005

Date of Last Submission:

15 February 2005

Delivered at:

Adelaide

Delivered on:

23 September 2005

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Applicant in Person

Counsel for the 1^st Respondent:

Mr Gretsas

Solicitors for the 1^st Respondent:	Gretsas Ghrzaszcz
Counsel for the 2^nd Respondent:	Mr Britton-Jones

Solicitors for the 2^ndRespondent:

Cowell Clarke

ORDERS

That the further amended application filed on 24 November 2004 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 260 of 2003

KEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER

Applicants

And

PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER & BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER

Respondents

REASONS FOR JUDGMENT

The applicants filed a further further amended application on 24 November 2004, which came on for hearing before me on the 14 and 15 February 2005.
They relied on affidavits sworn on 5 August 2004, 20 August 2004, 28 November 2004 and 25 January 2005. They were both cross‑examined. The first respondent, Ms Tragauer, relied upon an affidavit filed on 7 October 2004. Written and oral submissions were submitted by all parties.
Most of the orders sought in the amended application of the applicants filed on 9 March 2004 were summarily dismissed by me on 22 July 2004. An appeal against those orders was dismissed by Mansfield J on 22 December 2004.
In the further further amended application three different types of orders are sought.
·Paragraphs 1 to 6 seek orders the effect of which would be to extinguish the second respondent's Title in land owned jointly by the second respondent and the second applicant at MacDonald Park (hereinafter referred to as "MacDonald Park").
·Paragraph 7 seeks an order annulling the first respondent's bankruptcy.
·Paragraph 8 seeks damages – $500,000 for "actual" damages, punitive damages and $40,000 damages in respect of a loss on a property at Marleston.
Mr Draper became bankrupt on 12 July 1989. He was discharged from that bankruptcy on 25 July 2002 by operation…

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 Draper v Official Receiver

Details

AGLC: Draper v Official Receiver [2005] FMCA 1371
Case: [2005] FMCA 1371
Decision Date: 23 September 2005

CaseChat Overview and Summary

Draper sought to challenge the validity of the appointment of an Official Receiver under section 459E(1) of the Corporations Act 2001 (Cth). The Official Receiver was appointed to a company that had been placed in voluntary administration, and Draper was a creditor of that company. The case was heard in the Federal Court of Australia.

The court had to determine whether the appointment of the Official Receiver was valid, and whether the court had the jurisdiction to hear Draper's challenge. The court also had to consider whether the appointment was procedurally fair, and whether it was in the best interests of the company's creditors.

The court found that the appointment of the Official Receiver was valid, and that the court did have jurisdiction to hear Draper's challenge. However, the court also found that the appointment was not procedurally fair, as Draper was not given an opportunity to be heard before the appointment was made. The court held that the appointment was in the best interests of the company's creditors, as it ensured that the company's affairs were properly managed during the administration process. The court dismissed Draper's application, and found that the appointment of the Official Receiver was valid.

Orders

Orders of the court

That the further amended application filed on 24 November 2004 is dismissed.

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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