Mathai & Ors v Nelson

[2013] HCASL 115

MATHEW KERALAVAKAYIL MATHAI & ORS

v

SIMON PATRICK NELSON AS TRUSTEE OF THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI A FORMER BANKRUPT

[2013] HCASL 115
M9/2013

1. The applicants seek special leave to appeal from the order of a single judge of the Federal Court of Australia (Tracey J) dismissing the applicants' appeal from a decision of the Federal Magistrates Court (Riethmuller FM).

2. The first applicant became bankrupt in 1995 after a judgment debt which he had incurred in England was enforced in Australia. The other applicants are members of his family. The respondent sought orders under s 121 of the Bankruptcy Act 1966 (Cth) ("the Act") in relation to two residential properties in Kew, Victoria. At trial, the respondent alleged that the first applicant had registered the properties in the names of certain members of his family at times when he was, or was about to become, insolvent. Certain transfers of funds by the first applicant for the purchase of the properties were said to have been made to prevent the first applicant's property from becoming divisible amongst his creditors, or to hinder the process of making his property available to his creditors. None of the creditors at the time of the transfers proved in the bankruptcy.

3. On 2 September 2011, Riethmuller FM made orders declaring that the respondent was entitled to the beneficial ownership of the two residential properties, and requiring the execution of instruments of transfer of each property to the respondent.

4. The applicants appealed to the Federal Court, relevantly on the grounds that s 121 of the Act requires that a creditor, actual or foreseen, at the time of the impugned transfer be one of the creditors proving in the bankruptcy; that s 121 did not have what was said to be an "extra-territorial operation"; that Riethmuller FM erred in finding that the two properties had been purchased by the first applicant; and that, in the circumstances, the correct remedy, if any, was not an order requiring the transfer of the properties to the respondent, but an order for the payment of money. On 21 December 2012, the Federal Court dismissed the appeal.

5. The applicants now apply to this Court for special leave to appeal against the order of the Federal Court, on essentially the same grounds.

6. There is no reason to doubt the correctness of the order of the Federal Court.  An appeal to this Court would have insufficient prospects of success to warrant a grant of special leave.

7. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
26 June 2013 S.M. Crennan