Fuller v Wily

[1999] FCA 656

FEDERAL COURT OF AUSTRALIA

Fuller v Wily [1999] FCA 656

BANKRUPTCY – discharge and annulment – discharge by operation of law – objections to discharge – appeal from review of decision to object – objection decision affirmed – whether review an error of law because necessarily involved disturbing or affecting third party rights

Bankruptcy Act 1966 (Cth) s149D

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

MICHAEL JOHN FULLER v HUGH JENNER WILY

NO. SG 110 of 1998

HEEREY, R D NICHOLSON AND FINN JJ
11 MAY 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 110 of 1998

BETWEEN:	MICHAEL JOHN FULLER Applicant
AND:	HUGH JENNER WILY Respondent
JUDGES:	HEEREY, R D NICHOLSON and FINN JJ
DATE OF ORDER:	11 MAY 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed with costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 110 OF 1998

BETWEEN:	MICHAEL JOHN FULLER Applicant
AND:	HUGH JENNER WILY Respondent

JUDGE:	HEEREY, R D NICHOLSON AND FINN JJ
DATE:	11 MAY 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a decision of the Administrative Appeals Tribunal which affirmed a decision of the respondent to file a notice of objection to the discharge of the applicant under s 149A of the Bankruptcy Act  1966 (Cth) (“the Act”).

2. On 20 May 1993 a sequestration order was made against the estate of the applicant.  On the following day the respondent was appointed trustee of his estate.  The respondent's notice of objection was dated 5 June 1996.  It set out five grounds of objection which relied on two paragraphs of subsection 149D(1) as follows: 

   “149D(1)The grounds of objection that may be set out in a notice of objection are as follows: 

   …

   (g)at any time during the period of five years immediately before the commencement of the bankruptcy, or at any time during the bankruptcy, the bankrupt: 

   (i)

   …

   (ii)disposed of property but failed to explain adequately to the trustee why no money was received as a result of the disposal or what the bankrupt did with the money received as a result of the disposal;

   …

   (n)the bankrupt failed, whether intentionally or not, to disclose to the trustee the bankrupt's beneficial interest in any property.”

   The notice of objection referred to the applicant’s dealings with a trust called the Vilnius Trust which was established in the Channel Islands on 15 October 1986.  The trustee of that trust was the St Helier Trust Company Limited (“St Helier”).  A sum of US$1 million was settled on the trust.  St Helier made various dispositions of money at the request of the applicant. A 6.1-metre hydrofoil boat, furnishings and fixtures in a unit at the Hyatt Resort, Coolum and a property at 46 Katoomba Road, Beaumont, in South Australia, the title…