FEDERAL COURT OF AUSTRALIA
Gao v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Zhu) [2002] FCA 1363
PENG YUANG GAO v THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
V 7028 OF 2002SUNDBERG J
6 NOVEMBER 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 7028 OF 2002
BETWEEN:
PENG YUANG GAO
APPLICANTAND:
THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
RESPONDENTJUDGE:
SUNDBERG J
DATE OF ORDER:
6 NOVEMBER 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Application filed 16 September 2002 be dismissed.
2.The applicant pay the respondent’s costs of the Application and of the motion notice of which was filed on 21 October 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 7028 OF 2002
BETWEEN:
PENG YUANG GAO
APPLICANTAND:
THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
6 NOVEMBER 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The background facts are set out in the reasons I gave on 4 October 2002 for dismissing the applicant’s motion to join the Commonwealth Bank of Australia as a respondent.
The trustee has applied to have the Application dismissed under Order 20 rule 2 of the Rules on the ground that it discloses no reasonable cause of action. Paragraph 1 of the Application seeks the removal of the trustee under s 156A(4) of the Act on the ground that the trustee is dealing with the bankrupt’s property otherwise than in the interests of the unsecured creditors. Section 156A(4) does not apply to the Official Trustee in Bankruptcy. It applies only to registered trustees. Putting this obstacle to one side, the “dealing” complained of consists in “transferring” to the Bank the trustee’s power to sell the property or “instructing” the Bank to sell it. As I said in dismissing the joinder motion, that complaint is misconceived. There is no prospect of the applicant obtaining this aspect of the relief sought.
Paragraph 2 of the Application seeks a review of the trustee’s conduct in “transferring” his power of dealing with the bankrupt’s property to the Bank, which sold it at an undervalue. For the reasons I gave for dismissing the joinder motion, there is no prospect of a successful review on this ground. Paragraph 3 of the Application seeks an order that the contract of sale between the Bank and its purchaser be set aside. What I have said in my earlier reasons shows that there is no prospect of the applicant obtaining this relief. It was for the reasons then given that I declined to join the Bank as a respondent. Paragraph 4 seeks damages from the trustee for loss resulting to the unsecured creditors from the trustee’s dealing with the property. The applicant, who claims to be an unsecured creditor, has no standing to make this claim. I refer to what I have said in my earlier reasons.
Paragraph 5 of the Application seeks an annulment of the bankruptcy under s 153B of the Act. The applicant’s affidavits disclose no evidence to substantiate the claim that the bankrupt’s petition ought not to have been accepted by the trustee, and Mr Bezemer deposes that he is not aware of any basis or facts upon which the bankruptcy ought to be annulled.
Since there is no prospect of the applicant obtaining any of the relief sought, and there is no real question to be tried, it is appropriate to dismiss the Application. See General Steel Industries v Commissioner for Railways (1964) 112 CLR 125.
On the respondents motion I will order that the Application be dismissed with costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 6 November 2002
The applicant appeared in person. Counsel for the Respondent: M Lhuede Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 6 November 2002 Date of Judgment: 6 November 2002
- AGLC
- Gao v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Zhu) [2002] FCA 1363
- Case
- [2002] FCA 1363
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the transaction was indeed made under undue influence and, if so, whether it constituted a preference or a transaction at an undervalue. The court examined the evidence provided by the applicant and considered the burden of proof required to establish undue influence. It was established that undue influence involves the improper use of power over another person, which subverts the will of that person. The court assessed the relationship between the parties and the circumstances surrounding the transaction to determine if undue influence was present.
After careful consideration, the court found that the applicant had not met the burden of proof to establish that the transaction was made under undue influence. Consequently, the court held that the transaction could not be set aside as a preference or a transaction at an undervalue. The court dismissed the application and ordered the applicant to pay the respondent's costs associated with the application and the subsequent motion notice.
Orders
Orders of the court
1. The Application filed 16 September 2002 be dismissed.
2. The applicant pay the respondent’s costs of the Application and of the motion notice of which was filed on 21 October 2002.
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
Established by: SUNDBERG J
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