Official Trustee in Bankruptcy & B and G (Deceased)

The Official Trustee in Bankruptcy, as applicant, sought to set aside consent orders made under s 79A(1)(a) of the *Family Law Act 1975* (Cth) in the Family Court of Australia. The original orders, made by consent on 20 July 1992, had altered the property interests of the first respondent (the bankrupt) and the second respondent (deceased). The applicant argued that these original orders should be set aside due to the suppression of evidence, which resulted in a miscarriage of justice, and that the bankrupt should be restored to a legal situation of joint ownership of a property. The respondents opposed the application, seeking to uphold the existing consent orders.

The central legal issues before the Court were whether the Official Trustee was a person affected within the meaning of s 79A of the Act, whether a miscarriage of justice had occurred due to the suppression of evidence, and if so, whether it was appropriate to exercise the discretion to set aside or vary the original orders, particularly in light of the delay and the death of the second respondent. The Court was also required to consider what consequential orders, if any, should be made under s 79 of the Act if the original orders were set aside.

The Court found that the financial disclosure made by the second respondent in the original s 79 proceedings was inadequate and misleading, as it failed to disclose substantial judgment debts owed by the first respondent to a third party and his former solicitors. This omission was conceded by the second respondent's solicitors as common ground. The Court reasoned that this suppression of evidence constituted a miscarriage of justice, satisfying the criteria under s 79A(1)(a) of the Act. Despite the significant delay and the death of the second respondent, the Court determined that it was still appropriate to exercise its discretion to set aside the original consent orders.

The Court ordered that the consent orders made on 20 July 1992 be set aside. It further ordered that the heirs, executors, and assigns of the deceased second respondent transfer to the first respondent fifty per cent of her right, title, and interest in property D, subject to the existing mortgage. The first respondent was also restrained from disposing of or encumbering any interest in property D pending the determination of separate Federal Court proceedings. Each of the first and second respondents (or their estate) was ordered to pay the applicant's costs.