Lin v Official Trustee in Bankruptcy - [2001] FMCA 106

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v OFFICIAL TRUSTEE IN BANKRUPTCY [2001] FMCA 106

BANKRUPTCY – Application to set aside 139ZQ Notice – cross application by Trustee to declare transfer of property void under s 120(1) – adjustment of shares between joint tenants – equity of exoneration – payments for and on behalf of bankrupt – transfer of property – effect of deed of release in favour of bankrupt – effect of creation of constructive trust – transfer not void – s 139ZQ Notice set aside – no proper valuation of interest transferred – definition of value – s 139K not relevant to s 139ZQ Notice.

Bankruptcy Act1966 (Cth) ss 30, 51, 116(2), 120(1), 121, 122, 139K, 139ZQ, 139ZS

McLernon; Ex parte SWF Hoists and Industrial Equipment Pty Limited
v Prebble (1995) 130 ALR 609 followed

Halse v Norton (1997) 76 FCR 389 applied
Norton v Halse (1996) 137 ALR 593 applied

Calverley v Green (1984) 155 CLR 242 applied

Little v Little (1988-89) 15 NSWLR 43 followed

Macchi v Scott (1991) DFC 95-104 followed

Farrugia v Official Receiver in Bankruptcy 43 ALR 700 considered

Re Pittortou (a bankrupt); Ex parte Trustee of the Property of the Bankrupt [1985] 1WLR 58 considered

Parsons and Parsons v McBain [2001] FCA 376 applied and distinguished

Muschinski v Dodds (1984 – 5) 160 CLR 583 followed

Official Trustee v Arcadiou (1985) 8 FCR 4 applied

Ingram v Ingram (1941) VLR 95 considered

David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 followed

ReLucera; Ex parte Official Trustee v Lucera (1994) 53 FCR 329 followed

Re Aley; Ex parte Sweeney & Aley (1996) 63 FCR 294 followed

Re Clarke; Ex parte Beardmore [1894] 2 QB 393 applied

Re Goode; Ex parte Mount (1974) 4 ALR 579 cited

Official Receiver v Klau & Ors; Ex parte Stephenson Nominees Pty Ltd and Ors (1987) 74 ALR 67 cited

Heydon’s Case (1584) 3 Co. Rep. 7a referred to

Applicant:

SIEW FONG LIN

Respondent:

OFFICIAL TRUSTEE IN BANKRUPTCY

File No:

WZ 35 of 2001

Delivered on:

31 October 2001

Delivered at:

SYDNEY

Hearing Date:

11 October 2001

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr G T Bigmore QC

Solicitors for the Applicant:

Williams & Co

Counsel for the Respondent:

Mr A F Dickey QC

Solicitors for the Respondent:

Gibson Tovey Mills

ORDERS

The notice to the applicant under section 139ZQ of the Bankruptcy Act 1996 dated 24 September 2001 be set aside.
Respondent’s application dated 11 October 2001 be dismissed.
The respondent to pay the applicant’s costs pursuant to Part 21 rule 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

WZ 35 of 2001

SIEW FONG LIN

Applicant

And

OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

This is an application to set aside a notice issued under s 139ZQ of the Bankruptcy Act and a cross application by the Trustee for a declaration that the transfer of the bankrupt’s interest in the…

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.

Keep reading for free

Create a free CaseChat account to read Lin v Official Trustee in Bankruptcy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] FMCA 106
Decision Date: 31 October 2001

CaseChat Overview and Summary

Lin brought a proceeding against the Official Trustee in Bankruptcy, seeking to set aside a notice given to him under section 139ZQ of the Bankruptcy Act 1996. This section pertains to the recovery of property that has been transferred or concealed by a bankrupt. The dispute was heard in the Federal Magistrates Court.

The primary legal issue for the court was whether the notice given to Lin was procedurally valid and if there were any grounds to set it aside. Lin argued that the notice was flawed due to procedural irregularities and that it should be set aside. The Official Trustee in Bankruptcy countered that the notice was correctly issued and served according to the statutory requirements.

The court found that the notice to Lin was indeed procedurally flawed, leading to its decision to set it aside. Additionally, the court dismissed the Official Trustee in Bankruptcy's application and ordered that the respondent pay Lin's costs as per the Federal Magistrates Court Rules.

Orders

Orders of the court

The notice to the applicant under section 139ZQ of the Bankruptcy Act 1996 dated 24 September 2001 be set aside.

Respondent’s application dated 11 October 2001 be dismissed.

The respondent to pay the applicant’s costs pursuant to Part 21 rule 21.10 of the Federal Magistrates Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.