McNamara v San (No. 2) - [2010] FCA 116

FEDERAL COURT OF AUSTRALIA
McNamara v San (No. 2) [2010] FCA 116

Citation: McNamara v San (No. 2) [2010] FCA 116

Parties: PAUL ANTHONY McNAMARA v BAO SAN, JULIE SAN, IVAN SAN, OFFICIAL TRUSTEE IN BANKRUPTCY and SCHON GREGORY CONDON

File number: NSD 615 of 2009

Judge: GRAHAM J

Date of judgment: 8 February 2010

Date of hearing: 8 February 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 9

Counsel for the Applicant: F G Kalyk

Counsel for the Third Respondent: E W Young

Solicitor for the Third Respondent: Parry Carroll

Solicitor for the Fourth Respondent: M Freidman of Harris Freidman Hyde Page

Counsel for the Fifth Respondent: R D Marshall from 2:15pm to 2:50pm on 8 February 2010

Solicitor for the Fifth Respondent: M K L Hayter of Gillis Delaney

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 615 of 2009

BETWEEN:
PAUL ANTHONY McNAMARA
Applicant

AND:
BAO SAN
First Respondent

JULIE SAN
Second Respondent

IVAN SAN
Third Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Fourth Respondent

SCHON GREGORY CONDON
Fifth Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

8 FEBRUARY 2010

WHERE MADE:

SYDNEY

THE COURT GRANTS:
1.Leave to the applicant to further amend the Further Amended Application filed 3 November 2009 by deleting paragraph A3 and substituting as A3 “A declaration that the transfer of the family home of the first and second respondents to the third respondent is void against the fourth and fifth respondents.”
2.Leave to the applicant to amend paragraph 2 of the preamble to the Further Amended Application filed 3 November 2009 by deleting that paragraph and substituting: “2. A declaration that the transfer of the family home property is void under section 120 and/or section 121 of the Bankruptcy Act 1966 (Cth).”

AND THE COURT ORDERS THAT:
3.The costs of the third, fourth and fifth respondents that may prove to be thrown away by the further amendments to the Further Amended Application be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 615 of 2009

BETWEEN:
PAUL ANTHONY McNAMARA
Applicant

AND:
BAO SAN
First Respondent

JULIE SAN
Second Respondent

IVAN SAN
Third Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Fourth Respondent

SCHON GREGORY CONDON
Fifth Respondent

JUDGE:

GRAHAM J

DATE:

8 FEBRUARY 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

These proceedings were commenced by an Application filed 25 June 2009. The application was unusual in that it was brought by a creditor to challenge the validity of a transfer of a family home forming part of the bankrupt estate of the first and/or second respondent pursuant to ss 120 and 121 of the Bankruptcy Act 1966 (Cth). The Application was succeeded by an Amended Application filed 18 August 2009 and a Further Amended Application filed 3 November 2009.
On 25…

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.

Continue reading McNamara v San (No. 2)

Details

AGLC: McNamara v San (No. 2) [2010] FCA 116
Case: [2010] FCA 116
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, presided over by Justice Graham, was presented with a case where Paul Anthony McNamara sought to challenge the transfer of a family home to Bao San, Julie San, and Ivan San. The dispute involved the validity of this transfer in relation to the bankrupt estate of Bao San and Julie San, and the potential impact on the Official Trustee in Bankruptcy and Schon Gregory Condon. The primary issue before the court was whether the transfer of the family home to Ivan San was void under sections 120 and/or 121 of the Bankruptcy Act 1966 (Cth).

The court had to determine whether the transfer was valid and if it could be considered voidable under the Bankruptcy Act. This involved examining the nature of the relief sought by McNamara, which was initially ambiguous due to discrepancies in the Further Amended Application filed by McNamara. Specifically, the court had to clarify whether the application sought to declare the transfer void against the fourth and fifth respondents or if it was based on the statutory provisions of the Bankruptcy Act.

Justice Graham addressed the ambiguity by granting McNamara leave to further amend the Further Amended Application. The court allowed the deletion of paragraph A3 and the substitution of a new declaration that the transfer of the family home to Ivan San was void against the fourth and fifth respondents. Additionally, the preamble to the Further Amended Application was amended to reflect that the claim was grounded in sections 120 and/or 121 of the Bankruptcy Act. The court reserved the costs that may be incurred by the third, fourth, and fifth respondents due to these amendments. This decision ensured that the court's jurisdiction and the specific relief sought were clearly articulated, facilitating a more straightforward determination of the case's merits at a future hearing.

Orders