FEDERAL COURT OF AUSTRALIA
El-Debel v Micheletto (Trustee) [2021] FCAFC 117
Appeal from: Micheletto (Trustee), in the matter of the El-Debel (Bankrupt) v El-Debel [2020] FCA 1031 File number: NSD 1038 of 2020
NSD 1029 of 2020Judgment of: MARKOVIC, DERRINGTON AND COLVIN JJ Date of judgment: 30 June 2021 Catchwords: BANKRUPTCY AND INSOLVENCY - appeals from decision finding whole or part of interests in properties held on resulting trust for bankrupt - where properties registered in names of parties associated with bankrupt - whether bankrupt provided all or part of purchase price for properties - whether presumption of resulting trust rebutted by evidence of intention of bankrupt to contrary - whether reasoning of primary judge rested upon finding of express oral trust not advanced in hearing - whether interest in property formed part of bankrupt estate of bankrupt's earlier bankruptcy - whether primary judge erred in using content of file note of solicitor as admission by bankrupt's mother of a trust - whether primary judge erred in finding payments of purchase price by companies associated with bankrupt were contributions by bankrupt - whether primary judge reasoned by process of impermissible speculation and conjecture - whether principle in Jones v Dunkel should not be applied where witness subjected to compulsory examination - appeals allowed in part Legislation: Bankruptcy Act 1966 (Cth) s 31
Conveyancing Act 1919 (NSW) s 23C
Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Chairman, National Crime Authority v Flack (1998) 86 FCR 17
Donnelly v Edelsten (1994) 49 FCR 384
Fabre v Arenales (1992) 27 NSWLR 437
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Jones v Dunkel (1959) 101 CLR 298
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Luxton v Vines (1952) 85 CLR 352
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163
Payne v Parker [1976] 1 NSWLR 191
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Seltsam Pty Ltd v McGuiness [2000] NSWSCA 29; (2000) 49 NSWLR 262
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 218 Date of hearing: 27-28 May 2021 For NSD 1038 of 2020: Counsel for the Appellants: Mr D Allen Solicitor for the Appellants: Avondale Lawyers Counsel for the Respondents: Mr MR Pesman SC with Mr P Newton Solicitor for the Respondents: ERA Legal For NSD 1029 of 2020: Counsel for the Appellant: Mr M Einfeld QC with Mr D Krochmalik Solicitor for the Appellant: Darby Jones Lawyers Counsel for the Respondents: Mr MR Pesman SC with Mr P Newton Solicitor for…
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- Case
- [2021] FCAFC 117
- Decision Date
CaseChat Overview and Summary
The court examined several legal issues, including whether the reasoning of the primary judge relied on findings of an express oral trust not presented in the hearing, whether the interest in the property formed part of the bankrupt estate from a previous bankruptcy, and whether the primary judge erred in considering a file note of a solicitor as an admission by the bankrupt's mother of a trust. Additionally, the court considered whether the primary judge erred in finding that payments made by companies associated with the bankrupt were contributions by the bankrupt, and whether the primary judge's reasoning involved impermissible speculation and conjecture. The court also examined whether the principle in Jones v Dunkel should not apply where a witness had been subjected to compulsory examination.
The court found that there was insufficient evidence to support some of the primary judge's findings, and that the primary judge's reasoning contained errors. The court concluded that the bankrupt held a 38.04% resulting trust interest in the second Peakhurst property, rather than the 43% determined by the primary judge. The court also found that the primary judge erred in using the content of a file note as an admission by the bankrupt's mother, and in considering payments by companies associated with the bankrupt as contributions by the bankrupt. The appeals were allowed in part, and the final orders of the primary judge were varied accordingly. The parties were directed to attempt to agree on costs orders, with any unresolved issues to be determined on the papers.
Orders
Orders of the court
1. The appeal be allowed in part.
2. The declarations made by orders 4 and 5 and orders 12, 13 and 14 be amended by deleting 43% wherever appearing and substituting 38.04% and by deleting 57% wherever appearing and substituting 61.96%.
3. The appeal be otherwise dismissed.
4. Within 14 days, the parties do file an agreed minute of orders as to the costs or if agreement is not reached, competing minutes with short written submissions of no more than three pages in support of the costs orders sought.
5. Any issue as to costs orders be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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