FEDERAL COURT OF AUSTRALIA
O’Brien v Sheahan [2004] FCA 608
BANKRUPTCY – trustee – validity of appointment of registered trustee – consent to act – registered trustee filed Notice of Objection to discharge – whether at time of objection, registered trustee was in law trustee of bankrupt estate – certificate of appointment issued – registered trustee not notified in writing of appointment – whether registered trustee informed Official Receiver within 10 days of appointment of acceptance to act – whether formal defect invalidated appointment.
Bankruptcy Act 1966 (Cth)
Nilant v Macchia (2000) 104 FCR 238 cited
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 citedCHRISTOPHER JOHN O’BRIEN v JOHN SHEAHAN
S 7006 of 2003
LANDER J
ADELAIDE
14 MAY 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 7006 OF 2003
BETWEEN:
CHRISTOPHER JOHN O'BRIEN
APPLICANTAND:
JOHN SHEAHAN
RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
14 MAY 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 7006 OF 2003
BETWEEN:
CHRISTOPHER JOHN O'BRIEN
APPLICANTAND:
JOHN SHEAHAN
RESPONDENT
JUDGE:
LANDER J
DATE:
14 MAY 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The application in this matter was heard simultaneously with a similar application in action number S7005 of 2003, Birdseye v Sheahan [2004] FCA 609.
The resolution of this matter will largely resolve the matters in dispute in the matter of Birdseye v Sheahan.
The applicant seeks:
‘1.A declaration that as at 3 December 1999 the Respondent was not the Trustee of the Applicant’s estate.
2.A declaration that as at 6 December 1999 the Respondent was not the Trustee of the Applicant’s estate.
3.A declaration that no valid Notice of Objection was served on the Applicant.
4.A declaration that no valid Notice of Objection was filed by the Official Receiver.
5.A declaration that as at 3 December 1999 there was not in existence a valid Certificate of Appointment in favour of the Respondent in relation to the Applicant’s estate.
6.A declaration that the Certificate of Appointment in favour of John Sheahan dated 6 December 1999 is void and/or of no effect.
7.A declaration that the Respondent is not the Trustee in Bankruptcy of the Applicant’s bankrupt estate.
8.A permanent injunction restraining the Respondent from further acting or purporting to act as the Trustee in Bankruptcy of the Applicant’s bankrupt estate.
9.A declaration from Mr John Sheahan is deemed to have declined the appointment as the Trustee in Bankruptcy of the Respondent’s bankrupt estate.’
The applicant filed a debtor’s petition dated 25 October 1996. On 5 November 1996, on the petition of the Deputy Commissioner of Taxation, Mansfield J made a sequestration order in relation to the estate of the applicant. On the same day, again on the petition of the Deputy Commissioner…
Continue reading O'Brien v Sheahan
Sign in free to access the full text
- AGLC
- O'Brien v Sheahan [2004] FCA 608
- Case
- [2004] FCA 608
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the respondent had established adverse possession of the land in question. The court had to consider the principles of adverse possession and determine whether the respondent's possession of the land was sufficiently open, notorious, and exclusive to constitute adverse possession. The court also had to consider whether the respondent's possession was continuous and uninterrupted for the requisite period of time.
The court found that the respondent had not established adverse possession of the land. The court held that the respondent's possession of the land was not sufficiently open, notorious, and exclusive to constitute adverse possession. The court found that the respondent's possession was not continuous and uninterrupted for the requisite period of time. The court also found that the respondent had not discharged the onus of proving adverse possession. The court dismissed the respondent's application.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: LANDER J
Full text does not contain this section.