Fletcher v George and Ors (No.6) - [2009] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER v GEORGE & ORS (NO.6)

[2009] FMCA 69

BANKRUPTCY – Summary dismissal – determination of various trusts alleged by the bankrupt in respect of certain property – will trusts – resulting and/or constructive trusts – indefeasibility of title by the mortgagee.

Bankruptcy Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Magistrates Act1999 (Cth)
Land Title Act1994 (Qld)
Property Law Act 1974 (Qld)
Trusts Act1973 (Qld)

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Barnes v Addy (1874) LR 9 ChApp 244
Cope v Keene (1968) 118 CLR 1
Danish Bacon Co Ltd Staff Pension Fund Trusts, In re [1971] WLR 248
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Friedman v Barrett; Exe parte Friedman [1962] Qd R 498
George [2005] FAMCA 309
George v Fletcher [2008] FCA 1848
Macquarie Bank Limited v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133
Pridmore & Ors v Magenta Nominees Pty ltd & Ors [1997] FCA 152
Tara Shire Council v Garner [2003] 1 Qd R 566
Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58
White Industries Australia Limited v Commissioner of Taxation [2007] FCA 511; (2007)160 FCR 298

HAJ Ford & WA Lee, Principles of the Law of Trusts, Thompson Law Book Co, North Ryde, 2006
M Cope, Constructive Trusts, Law Book Co, Sydney, 1992

Applicant:

WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE

First Respondent:

LAUREN KAY GEORGE

Second Respondent:

DR PETER IRONSIDE PTY LTD ACN 008 126 387

Third Respondent:

DR PETER DOUGLAS IRONSIDE

Fourth Respondent:

NATIONAL AUSTRALIA BANK

Fifth Respondent:

SUSAN WILSON

Sixth Respondent:

RICHARD SIEBERT

File Number:

BRG 709 of 2008

Judgment of:

Burnett FM

Hearing dates:

8, 9 & 10 December 2008

Delivered at:

Brisbane

Delivered on:

9 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Coulsen

Solicitors for the Applicant:

Holman Webb Lawyers

The First Respondent appears on her own behalf

Counsel for the Second Respondent:

Mr Galloway

Solicitors for the Second Respondent:

Bell Dixon Butler

Counsel for the Third Respondent:

Mr Galloway

Solicitors for the Third Respondent:

Bell Dixon Butler

Counsel for the Fourth Respondent:

Mr Morgan

Solicitors for the Fourth Respondent:

Thynne & Macartney

Solicitors for the Fifth Respondent:

Lewis & McNamara

ORDERS

Declare that the Heads of Agreement dated 19 February 2008 and exhibited at WJF-8 to the Affidavit of William John Fletcher sworn

29 October 2008
remains valid and enforceable.
Declare that as at 24 February 2006 the legal and beneficial ownership of Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 vests in Applicant as trustee of the bankrupt estate.
Declare that as at 24 February 2006 the legal and beneficial ownership of the Toyota landcruiser with the licence plate 590FXR, VIN Number: JT11UJA509019411 (V), Engine…

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.

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Details

Case: [2009] FMCA 69
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Fletcher v George and Ors (No.6) was heard and determined. William John Fletcher, the applicant, sought a declaration that certain agreements and ownership of specific assets remained valid and enforceable. The respondents, George and others, contested these claims. The central issue before the court was the enforceability of the Heads of Agreement dated 19 February 2008 and a Deed of Settlement dated 28 October 2008, as well as the ownership of specific assets including a property, a vehicle, and a horse. The court had to determine if these agreements were legally binding and if the ownership of the assets in question belonged to the applicant.

The court considered the nature and intent of the agreements, along with the circumstances surrounding their creation and execution. It was determined that the Heads of Agreement and the Deed of Settlement were valid and enforceable, given that they were clear, mutual, and had been accepted by all parties involved. The ownership claims were also substantiated by the evidence provided, which showed that the assets in question vested in the applicant as trustee of the bankrupt estate as of 24 February 2006. Consequently, the court found in favour of the applicant on these points.

In light of the findings, the court made several declarations. It confirmed that the Heads of Agreement remained valid and enforceable, and that the applicant held legal and beneficial ownership of the specified property, vehicle, and horse as of the relevant date. The Deed of Settlement was also declared valid and enforceable, with an order for its performance. The court adjourned the trial for issues related to the relief sought in specific paragraphs of the amended application.

Orders

Orders of the court

Declare that the Heads of Agreement dated 19 February 2008 and exhibited at WJF-8 to the Affidavit of William John Fletcher sworn

29 October 2008

remains valid and enforceable.

Declare that as at 24 February 2006 the legal and beneficial ownership of Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 vests in Applicant as trustee of the bankrupt estate.

Declare that as at 24 February 2006 the legal and beneficial ownership of the Toyota landcruiser with the licence plate 590FXR, VIN Number: JT11UJA509019411 (V), Engine Number: 1FZ0444996 vests in Applicant as trustee of the bankrupt estate.

Declare that as at 24 February 2006 the legal and beneficial ownership of the Hanoverian mare known as Stellamarra with the microchip number 939000001109809 vests in the Applicant as trustee of the bankrupt estate.

Declare that Deed of Settlement between the Applicant and Susan Jane Wilson dated 28 October 2008 remains valid and enforceable and that it be performed.

Adjourn for trial issues arising from relief sought in paragraphs 3, 4 and 10 of the amended application.

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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