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…
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- Case
- [2001] FMCA 106
- Decision Date
CaseChat Overview and Summary
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
1.
The notice to the applicant under section 139ZQ of the Bankruptcy Act 1996 dated 24 September 2001 be set aside.
2.
Respondent’s application dated 11 October 2001 be dismissed.
3.
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
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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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