McVeigh v Zanella

[2000] FCA 1890

FEDERAL COURT OF AUSTRALIA

McVeigh v Zanella  [2000] FCA 1890

BANKRUPTCY – undervalued transaction – whether market value consideration given for transfer to parents and brother of quarter interest in property – whether express, resulting or constructive trust in existence – whether compensation payable to transferees by trustee.

Bankruptcy Act 1966 (Cth) ss 120, 139ZQ, 139ZR

Official Trustee in Bankruptcy v Arcadiou (1985) 8 FCR 4 referred to
Re Osborn (1989) 25 FCR 547 referred to
In Re Vandervell’s Trusts (No 2) [1974] Ch 269 referred to
Calverley v Green (1984) 155 CLR 242 referred to
Nelson v Nelson (1995) 184 CLR 538 referred to

DEAN ROYSTON McVEIGH (Trustee of the Bankrupt Estate of Guiseppe Zanella) v VINCENZO ZANELLA, CRISTINA ZANELLA and FRANCESCO ZANELLA

V7430 of 2000

WEINBERG J
22 DECEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V7430 OF 2000

BETWEEN:

DEAN ROYSTON McVEIGH (Trustee of the Bankrupt Estate of Guiseppe Zanella)
APPLICANT

AND:

VINCENZO ZANELLA
RESPONDENT

CRISTINA ZANELLA
SECOND RESPONDENT

FRANCESCO ZANELLA
THIRD RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

22 DECEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:

1.The transfer on 12 May 1997 by Guiseppe Zanella (“the bankrupt”) (also known as Giuseppe Zanella) of his interest as a joint tenant in the land described in Victorian Certificate of Title Volume 5619 Folio 1123608, known as 11 View Street, Reservoir, Victoria (“the property”), to Vincenzo Zanella, Cristina Zanella and Francesco Zanella is void against the applicant trustee under section 120 of the Bankruptcy Act 1966 (Cth); and

2.The applicant trustee is entitled to enforce the charge arising by virtue of the giving of a notice under s 139ZQ of the Bankruptcy Act 1966 (Cth), the notice being dated 11 March 1999, over the property.

THE COURT ORDERS THAT:

1.The application be allowed.

2.The respondents transfer to the applicant an equal undivided fourth share in the property described in Victorian Certificate of Title Volume 5619 Folio 1123608, known as 11 View Street, Reservoir, Victoria.

3.The respondents pay the applicant’s costs of and incidental to the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V7430 OF 2000

BETWEEN:

DEAN ROYSTON McVEIGH (Trustee of the Bankrupt Estate of Guiseppe Zanella)
APPLICANT

AND:

VINCENZO ZANELLA
FIRST RESPONDENT

CRISTINA ZANELLA
SECOND RESPONDENT

FRANCESCO ZANELLA
THIRD RESPONDENT

JUDGE:	WEINBERG J
DATE:	22 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application arising under ss 120, 139ZQ and 139ZR of the Bankruptcy Act 1966 (Cth) (“the Act”). The applicant, who is the Trustee of the Bankrupt Estate of Mr Guiseppe Zanella, seeks the following declarations:

   1.A declaration that the transfer on 12 May 1997 by Guiseppe Zanella (“the bankrupt”) (also known as Giuseppe Zanella) of his interest as a joint tenant in the land described in Victorian Certificate of Title Volume 5619 Folio 1123608, known as 11 View Street, Reservoir, Victoria (“the property”), to Vincenzo Zanella, Cristina Zanella…