King as Bankruptcy Trustee of Jose Fernandas De Silva v De Silva

The matter before the Court was an application by the bankruptcy trustee, King, seeking vesting orders in relation to real property held in joint tenancy with the deceased. The property in question was originally held as a joint tenancy between the deceased and the bankrupt. Following the deceased's death, the bankrupt was left as the sole surviving joint tenant. However, the certificate of title did not reflect this change, and instead, it incorrectly listed the deceased as holding an interest as a tenant in common. The Court was required to determine whether the certificate of title should be corrected to reflect that the bankrupt held the entire interest in the land through the operation of survivorship, and whether vesting orders should be granted to the trustee in bankruptcy.

The Court found that the certificate of title was incorrect and that the bankrupt should hold the entire interest in the land through the operation of survivorship. The Court noted that section 58 of the Bankruptcy Act 1966 (Cth) provides that property in which the bankrupt has an interest vests in the trustee in bankruptcy in equity. The Court also found that it had the power to grant vesting orders under the Trustees Act 1962 (WA) and that it was expedient to do so in this case. The Court noted that the Registrar of Titles had indicated that he was content with the form of the proposed orders, and that the Court could proceed in the absence of the first defendant as proper notice had been given.

The Court made orders vesting in the trustee in bankruptcy the interest on the certificate of title in the name of the deceased as a tenant in common. The Court also ordered that the certificate of title be amended to reflect that the bankrupt held the entire interest in the land through the operation of survivorship. The Court noted that the orders were made in the absence of the first defendant, but that proper notice had been given and that it was appropriate for the Court to proceed in this manner.