McVEIGH v Long - [2002] FMCA 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McVEIGH v LONG

[2002] FMCA 53

BANKRUPTCY – Trustee Application pursuant to ss 120 and 121 of the Bankruptcy Act 1966 – Bankruptcy before 16 December 1996 – whether Trustee has standing to commence application after discharge of bankruptcy for property not vested in trustee or bankrupt.

In Re Brall (1893) 2 QB 381
Official Trustee in Bankruptcy v Fodare (2000) FCA 300
Burke and Anor v Stapleton (1969) 120 CLR 664
Re Kastropil: Ex parte Official Trustee in Bankruptcy (1989) 33 FCR 135; 109 ALR 568
Re La Rosa; Ex parte Norgard v Rodcom Pty Ltd (1990) 21 FCR 270; 93 ALR 571
Mayne v The Public Trustee (1944) 70 CLR 395

Bankruptcy Act 1966 ss 5, 58(1), 116(1), 120, 121, 127
Transfer of Land Act (Vic) 1958 s89A
Bankruptcy Legislation Amendment Act 1996 Sch 1 Items 202 and 457

Bankruptcy Amendment Act 1980

Applicant:

DEAN ROYSTON McVEIGH

Respondent:

DAWN DENISE LONG

File No:

MZ 634 of 2001

Delivered on:

3 May 2002

Delivered at:

Melbourne

Hearing Date:

24 September 2001

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr N Hannan

Solicitors for the Applicant:

Abbott Stillman & Wilson

Counsel for the Respondent:

Ms K Knights

Solicitors for the Respondent:

Best Hooper

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 634 of 2001

DEAN ROYSTON McVEIGH

Applicant

And

DAWN DENISE LONG

Respondent

REASONS FOR JUDGMENT

DEAN ROYSTON McVEIGH (the Trustee) purportedly as Trustee of the property of NOEL FREDERICK LONG (the Bankrupt) in an application filed 15 August 2001 has sought certain orders pursuant to ss 120 and 121 of the Bankruptcy Act 1966 (the Act).
The Bankrupt became bankrupt on his own petition on 31 May 1996. He was discharged from bankruptcy on 1 June 1999.
DAWN DENISE LONG (the Respondent) is the wife of the Bankrupt. The claim by the Trustee against the Respondent seeks declarations in relation to property and shares and in particular a declaration that a transfer of a half interest in a property at 619 Canterbury Road Surrey Hills (Canterbury Road property) should be declared void and that the Respondent should transfer to the Trustee the half interest in that property. A further declaration is sought that the disposition of the proceeds of sale of 14 Edyvean Street Surrey Hills (Edyvean Street property) be declared void and that the Respondent pay to the Trustee the sum of $217,003.63 together with interest and costs. Orders are sought that the transfer of shares by the Bankrupt to the Respondent with respect to “Noel Long Pty Ltd” be declared void and that the Respondent pay the Trustee damages in respect of that transfer. The Trustee seeks a declaration that a transfer of shares in Tathra Properties Pty Ltd from the Bankrupt to the Respondent be also declared void and claims damages in respect of that transfer.
It is common ground that the Bankrupt became bankrupt on his own petition on 31 May 1996 and was discharged from…

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 McVEIGH v Long

Details

AGLC: McVEIGH v Long [2002] FMCA 53
Case: [2002] FMCA 53
Decision Date: 3 May 2002

CaseChat Overview and Summary

The Federal Magistrates Court of Australia in McVEIGH v Long [2002] FMCA 53 was tasked with determining the standing of the Trustee, Dean Royston McVeigh, to pursue claims against Dawn Denise Long, the former wife of the bankrupt Noel Frederick Long, under sections 120 and 121 of the Bankruptcy Act 1966. The core dispute involved whether the Trustee could bring the application post-discharge of bankruptcy for properties and shares not vested in the Trustee or the bankrupt before discharge. The Respondent argued that the Trustee had no standing to commence proceedings after the Bankrupt's discharge on 1 June 1999. The Court examined the statutory framework, particularly sections 58, 116, 120, 121, and 127 of the Act, alongside relevant case law and legislative amendments. The Court concluded that the Trustee's authority to commence actions under sections 120 and 121 was not contingent upon the property vesting in the Trustee before the Bankrupt's discharge. Instead, the Court held that the Trustee's ability to initiate proceedings under these sections was governed by the limitation periods stipulated in section 127. Consequently, the Trustee had standing to pursue the claims, provided they were within the statutory timeframes. This decision underscored the Trustee's ongoing responsibility to act in the interests of the bankrupt's estate, even after the Bankrupt's discharge, subject to the statutory constraints on initiating actions.

Orders