Official Trustee in Bankruptcy v Alvaro

[1996] FCA 483

CATCHWORDS

BANKRUPTCY - Bankruptcy Act 1966 (Cth) s 121 - disposition of property - money sums and interests in property - intention to defraud creditors - admissions made in criminal proceedings - whether admissible and if so against which respondents - assets placed into family trust structures to shield against failure of hazardous venture or undertaking - valuable consideration and good faith - state of mind of company - form of relief - whether dispositions of money to trustee companies "traceable" into assets acquired by the companies - disponee under a void disposition acquires defeasible title - title defeased by institution of proceedings to avoid disposition - costs - partial success.

Bankruptcy Act 1966 (Cth) ss 5, 6, 121
13 Eliz, c5
Conveyancing Act 1919 (NSW) s 37A
Crimes Act 1914 (Cth) s 86(1)(e)

Official Receiver v Barton (1983) 52 ALR 95
SS Hontestroom v SS Sagaporack (1927) AC 37
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Warren v Coombes (1979) 142 CLR 531
Barton v Official Receiver (1984) 4 FCR 380 (FC); (1986) 161 CLR 75 (HC)
Williams v Lloyd (1934) 50 CLR 341
Norgard v Rocom Pty Ltd (unreported, Federal Court of Australia (FC), 16 August 1990) Trautwein v Richardson [1946] ALR 129
In re Eichholz, decd [1959] 1 Ch 708
Barton v Vantrey Thuysen (1867) 11 Hare 126;  68 ER 1215
Jack v Smail (1905) 2 CLR 684
Union Trustee Co of Australia v Webb (1915) 19 CLR 669
Commissioner of Stamp Duties v Gale (1958) 101 CLR 91
Shaw v Forster (1872) LR 5 HL 321
In re Thackwray and Young's Contract (1888) 40 Ch D 34
Knight Sugar Co Ltd v Alberta Railway and Irrigation Co [1938] All ER 266
Svanosio v McNamara (1953) 96 CLR 186
Calverley v Green (1984) 155 CLR 242
Bloch v Bloch (1981) 55 ALJR 701;  37 ALR 55
Croton v The Queen (1967) 117 CLR 326
Catlin v Cyprus Finance Corporation (London) Ltd [1983] 1 QB 759
Re Marchiori (1983) FLR 290
Re Edelstein;  Ex parte Donnelly (unreported, Federal Court of Australia, 9 June 1992, Northrop J)
Morton v Morton [1937] P 151
Walton v The Queen (1989) 166 CLR 283
Dobson v Morris (1986) 4 NSWLR 681
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (1987) 15 FCR 64
Shoshana Pty Ltd v 10th Cantanae Pty Ltd (1987) 18 FCR 285
Italiano v Barbaro (1993) 40 FCR 303

PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515
Official Trustee v Marchiori (1983) 69 FLR 290
Noakes v J Harvy Holmes & Son (1979) 37 FLR 5
Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370
Mackay v Douglas (1872) LR 14 Eq 106
Ex parte Russell;  In re Butterworth (1882) 19 Ch D 588
Lloyd v Blumenthal (1884) 5 LR (NSW) Eq 99
Jones v Dunkel (1959) 101 CLR 298
Re Rossfield Group Operations and Morton Holdings (ACT) Pty Limited [1981] QdR 372
Brady v Stapleton (1952) 88 CLR 332
Harrods Limited v Stanton [1923] 1 KB 516
In re Mouat;  Kingston Cotton Mills Company v Mouat [1899] 1 Ch 831
Caddy v McInnes (1995) 131 ALR 277
Re Diplock [1948] 1 Ch 465
Daly v Sydney Stock Exchange (1986) 160 CLR 371
Re Goode (1974) 24 FLR 61
Sharrment Pty Ltd v Official Trustee (1988) 18 FCR 448 (FC)
Napier v Public Trustee (Western Australia) (1980) 32 ALR 153
Muschinski v Dodds (1985) 160 CLR 583

Official Trustee in Bankruptcy v Giuseppe Alvaro, Girolama Alvaro, Paul Alvaro, Carmine Alvaro, Combran Pty Ld, Rita Alvaro and Maria Concetta Alvaro
No. SG 85 of 1994

Official Trustee in Bankruptcy v Paul Alvaro, Rosina alvaro, P & R Alvaro Enterprises Pty Ltd, Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro
No SG 86 of 1994

Wilcox, Cooper and Moore JJ
Sydney (Heard in Adelaide)
22 May 1996

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
  No SG 85 of 1994

ON APPEAL FROM A JUDGE
  OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND:  GIUSEPPE ALVARO, GIROLAMA ALVARO,

PAUL ALVARO, CARMINE ALVARO, COMBRAN

PTY LTD, RITA ALVARO and MARIA CONCETTA

ALVARO

Respondents

JUDGES MAKING ORDER:        Wilcox, Cooper and Moore JJ

WHERE MADE:  Sydney (Heard in Adelaide)

DATE:  22 May 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders made by Heerey J on 31 October 1994 be set aside and, in lieu thereof, it be ordered that:

(a)a declaration be made that the transfer by Giuseppe Alvaro on 5 June 1981 of his right, title and interest in the house property at 18 Itala Avenue, Croydon Park, South Australia to Paul Alvaro as trustee of the Giuseppe Alvaro Family Trust is void as against the Official Trustee in Bankruptcy;

(b)Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) take all necessary steps and do all necessary things to enable title in the house property at 18 Itala Avenue, Croydon Park, South Australia to be transferred to the official Trustee in Bankruptcy as trustee of the bankrupt estate of Giuseppe Alvaro;

(c)Giuseppe Alvaro and Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) pay to the Official Trustee in Bankruptcy one half of the costs incurred by him in relation to the proceeding;  and

(d)the Official Trustee in Bankruptcy pay to Girolama Alvaro and Carmine Alvaro the costs incurred by each of them in relation to the proceeding.

1. Giuseppe Alvaro and Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) pay to the Official Trustee in Bankruptcy one half of the costs incurred by him in relation to the appeal.

1. The Official Trustee in Bankruptcy pay to Carmine Alvaro and Rita Alvaro the costs incurred by them in relation to the appeal, such costs being assessed as if those two people were jointly represented on the appeal.

1. The parties have liberty to apply for any further orders or directions as may be required to give effect to these declarations and orders.

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
GENERAL DIVISION
  No. SG 86 of 1994

ON APPEAL FROM A JUDGE OF THE
  FEDERAL COURT OF AUSTRALIA

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND;  PAUL ALVARO, ROSINA ALVARO, P & R ALVARO

ENTERPRISES PTY LTD, PAUL ALVARO JNR,
  ELENA ALVARO and MARIA CONCETTA ALVARO

Respondents

JUDGES MAKING ORDER:        Wilcox, Cooper and Moore JJ

WHERE MADE:  Sydney (Heard in Adelaide)

DATE:  22 May 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders made by Heerey J on 31 October 1994 be set aside and, in lieu thereof:

(a)a declaration be made that:

(i)the disposition of $35,750 made by Paul Alvaro on 30 November 1981 to P & R Alvaro Enterprises Pty Ltd is void as against the Official Trustee in Bankruptcy;

(ii)the house property 14-16 Lombard Street, North Adelaide, South Australia, is charged with the payment to the Official Trustee in Bankruptcy of $35,750 plus interest at ten percent per annum from 2 December 1992;

(iii)the disposition of $9,389 made by Paul Alvaro on 14 December 1983 is void as against the Official Trustee in Bankruptcy;  and

(iv)the house property at 630 Seaview Road, Grant, South Australia is charged with the payment to the Official Trustee in Bankruptcy of $9,389 plus interest at ten percent per
annum from 2 December 1992;  and

(b)The Official Trustee in Bankruptcy pay to Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro any costs incurred by them in the proceeding that are not costs that were incurred in connection with the representation of any other party.

1. Paul Alvaro, Rosina Alvaro and P & R Alvaro Enterprises Pty Ltd (as trustee of the Paul Alvaro Family Trust) pay to the Official Trustee in Bankruptcy thirty percent of the costs incurred by him in relation to the appeal.

1. The Official Trustee in Bankruptcy pay to Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro any costs incurred by them in the appeal that are not costs that were incurred in connection with the representation of any other party.

1. The parties have liberty to apply for any further orders or directions as may be required to give effect to these declarations and orders.

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
GENERAL DIVISION
  No SG 85 of 1994

ON APPEAL FROM A JUDGE
  OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND:  GIUSEPPE ALVARO, GIROLAMA ALVARO,

PAUL ALVARO, CARMINE ALVARO, COMBRAN

PTY LTD, RITA ALVARO and MARIA CONCETTA

ALVARO

Respondents

No. SG 86 of 1994

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND;  PAUL ALVARO, ROSINA ALVARO, P & R ALVARO

ENTERPRISES PTY LTD, PAUL ALVARO JNR,
  ELENA ALVARO and MARIA CONCETTA ALVARO

Respondents

CORAM:  Wilcox, Cooper and Moore JJ

PLACE:  Sydney (Heard in Adelaide)

DATE:  22 May 1996

REASONS FOR JUDGMENT

Wilcox and Cooper JJ

These appeals arise out of applications made by the Official Trustee in Bankruptcy ("the Official Trustee") in the administration of the bankrupt estates of Giuseppe Alvaro and Paul and Rosina Alvaro.  The former was made bankrupt on 3 December 1990 and the latter were made bankrupt on 18 February 1991.  In each estate,
a proof of debt was lodged by the Commissioner of Taxation ("the Commissioner") and by no other creditors.  It is unclear whether the bankruptcies have ended.  For the sake of convenience, Giuseppe, Paul and Rosina Alvaro will on occasion be referred to as "the bankrupts".

In respect of the estates of Paul and Rosina Alvaro, the Official Trustee sought the following final relief by application filed 2 December 1992 :-

"2.A Declaration that the house property at 14-16 Lombard Street North Adelaide in the said State registered in the name of the Respondent P & R Alvaro Enterprises Pty Ltd herein and comprised in Certificate of Title Register Book Volume 3784 Folio 190 vests in the Applicant as property of Paul Alvaro and Rosina Alvaro.

3.That the aforesaid house property at 14-16 Lombard Street North Adelaide in the said State be transferred to the Applicant as trustee of the estate of Paul Alvaro and Rosina Alvaro.

...

5.A Declaration that the house property at 630 Seaview Road Grange in the said State registered in the name of the Respondent P & R Alvaro Enterprises Pty Ltd herein and comprised in Certificate of Title Register Book Volume 2153 Folio 125 vests in the Applicant as property of Paul Alvaro and Rosina Alvaro.

6.That the aforesaid house property at 630 Seaview Road Grange in the said State be transferred to the Applicant as trustee of the estate of Paul Alvaro and Rosina Alvaro.

...

8.A Declaration that the net proceeds from the sale of the property at 188-190 Tynte Street North Adelaide in the said State currently registered in the name of the Respondent P & R Alvaro Enterprises Pty Ltd herein and comprised in Certificates of Title Register Book Volumes 4210 Folio 530 and Volume 202 Folio 184 vests in the Applicant as property of Paul Alvaro and Rosina Alvaro.

9.That the aforesaid net proceeds from the sale of the property at 188-190 Tynte Street North Adelaide in the said State be transferred to the Applicant as trustee of the Estate of Paul Alvaro and Rosina
Alvaro.

...

12.A Declaration that the allotment of twelve shares in the respondent P & R Alvaro Enterprises Pty Ltd four shares having been allotted to each of the respondents Paul Alvaro, Elena Galimi and Maria Concetta Alvaro on the 21st day of September 1990 vests in the Applicant as property of Paul Alvaro and Rosina Alvaro.

13.That the aforesaid twelve shares in respondent P & R Alvaro Enterprises Pty Ltd be transferred to the Applicant as trustee of the estate of Paul Alvaro and Rosina Alvaro.

..."

In respect of the estate of Giuseppe Alvaro the Official Trustee sought the following final relief by application filed 24 February 1993 :-

"1.A Declaration that one undivided moiety in the house property at 8 Coronado Court West Lakes in the said State registered in the name of the Respondent Girolama Alvaro herein and comprised in Certificate of Title Register Book Volume 4146 Folio 514 vests in the Applicant as property of Giuseppe Alvaro.

2.That the aforesaid house property at 8 Coronado Court West Lakes in the said State be transferred to the Applicant as trustee of the estate of Giuseppe Alvaro.

...

4.A Declaration that the house property at 18 Itala Avenue Croydon Park in the said State registered in the name of the Respondent Paul Alvaro herein and comprised in Certificate of Title Register Book Volume 3785 Folio 131 vests in the Applicant as property of Giuseppe Alvaro.

5.That the aforesaid house property at 18 Itala Avenue Croydon Park in the said State be transferred to the Applicant as trustee of the estate of Giuseppe Alvaro.

...

7.A Declaration that the house property at 10 Sierra Avenue Grange in the said State registered in the name of the Respondent Carmine
Alvaro herein and comprised in Certificate of Title Register Book Volume 4010 Folio 662 vests in the Applicant as property of Giuseppe Alvaro.

8.That the aforesaid house property at 10 Sierra Avenue Grange in the said State be transferred to the Applicant as trustee of the estate of Giuseppe Alvaro.

...

10.A Declaration that the house property at 67 George Street Royal Park in the said State registered in the name of the Respondent Combran Pty Ltd herein and comprised in Certificate of Title Register Book Volume 4090 Folio 537 vests in the Applicant as property of Giuseppe Alvaro.

11.That the aforesaid house property at 67 George Street Royal Park in the said State be transferred to the applicant as trustee of the estate of Giuseppe Alvaro.

...

13.A Declaration that the house property at 127 Crown Terrace Royal Park in the said State registered in the name of the Respondent Combran Pty Ltd herein and comprised in Certificate of Title Register Book Volume 3863 Folio 30 vests in the Applicant as property of Giuseppe Alvaro.

14.That the aforesaid house property at 127 Crown Terrace Royal Park in the said State be transferred to the Applicant as trustee of the estate of Giuseppe Alvaro.

..."

The Official Trustee contended that he was entitled to the relief sought in consequence of the operation of s 121 of the Bankruptcy Act 1966 (Cth) ("the Act") or alternatively, that certain of the transactions whereby trustees of family trusts and relatives of the bankrupts acquired title to the relevant properties were shams or alternatively, in the circumstances in which they occurred, the transactions gave rise to a resulting trust of the properties in favour of the relevant bankrupt. The applications were
heard consecutively by Heerey J.  By agreement, the evidence in the Paul and Rosina Alvaro matter ("Official Trustee v Paul Alvaro") was treated as evidence in the Giuseppe Alvaro matter ("Official Trustee v Giuseppe Alvaro").  Heerey J dismissed each application with costs.  The appeals to this Court are from the dismissal by Heerey J of each application and against the orders for costs.  The appeals were heard together by consent of the parties.

Section 121 of the Act provides :-

"121(1)           Subject to this section, a disposition of property, whether made before or after the commencement of this Act, with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith, is, if the person making the disposition subsequently becomes a bankrupt, void as against the trustee in the bankruptcy.

(2)                   Nothing in this section shall be taken to affect or prejudice the title or interest of a person who has, in good faith and for valuable consideration, purchased or acquired the property the subject of the disposition or any interest in that property.

(3)                   In this section `disposition of property' includes a mortgage of property or a charge on or in respect of property."

"Property" is defined in s 5 of the Act :-

"`property' means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incidental to any such real or personal property."

In order to attract the operation of s 121 of the Act, the Official Trustee bears the onus of establishing, in respect of each of the properties attacked, that there was a disposition of property by a person who subsequently became bankrupt, that the
disposition was made with an intention to defraud creditors and that the disposition was not one for valuable consideration in favour of a person who acted in good faith (Official Receiver v Barton (1983) 52 ALR 95 at 121).

Each element of s 121 of the Act requires a close analysis of the facts and circumstances surrounding the impugned disposition. It is appropriate therefore to briefly state the position of this Court on appeal so far as the finding of facts and the drawing of inferences from proved facts is concerned.

None of the principal respondents gave evidence before Heerey J.  The only member of the extended Alvaro family to give evidence was Rita Alvaro, Giuseppe Alvaro's daughter-in-law.  Her evidence was accepted by Heerey J and no basis was shown on the appeals to suggest that his Honour erred in this regard.  Other than for that evidence, this is not a case where the demeanour of the witnesses or the trial judge's estimation of them played any part in the trial judge's reasons for judgment.  It follows that this is not a case for the application of the principles stated by Lord Sumner in SS Hontestroom v SS Sagaporack (1927) AC 37 at 47, by McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. This Court is as equipped to determine the facts as was the trial judge. The appeals to this Court are by way of re-hearing and the Court has a right and a duty to determine the facts for itself (see Warren v Coombes (1979) 142 CLR 531).

DISPOSITION OF PROPERTY

1. The Paul and Rosina Alvaro Transactions

   Section 121 operates, assuming the other elements to be made out, to avoid the relevant disposition of property. The section does not operate upon the entire transaction surrounding the disposition but has the specific effect of avoiding, as against the trustee in bankruptcy, the disposition of property which is attacked. It is necessary, therefore, to closely examine the factual circumstances so that the disposition of property sought to be avoided can be precisely identified.

In respect of Paul and Rosina Alvaro, we are concerned with dealings in relation to three real estate properties by the bankrupts and the trustee of a family trust.  A share transaction is also impugned.

14 - 16 Lombard Street, North Adelaide
  On 17 November 1981 P & R Alvaro Enterprises Pty Ltd ("the company"), the trustee of the Paul Alvaro Family Trust ("the PAF Trust"), entered into a contract for the purchase of 14-16 Lombard Street, North Adelaide ("Lombard Street") for $40,000.  The contract was completed on 30 November 1981 and was settled by two cheques drawn on the company's operating bank account.  The total cost was $40,910.  On that day a cash deposit of $35,750 was made to the company's operating bank account.  A document prepared by officers of the Australian Taxation Office ("ATO") shows that on 30 November 1981 Paul Alvaro withdrew $35,750 from his Commonwealth Bank account number 700243-001.  In the absence of any evidence to the contrary it is reasonable to infer, and we do, that this amount represents the $35,750 deposited in the company's operating bank account on that day and was used for the settlement of the contract to purchase Lombard Street.

188, 190 and 190A Tynte Street, North Adelaide
  On 22 February 1983 Paul Alvaro offered by tender to purchase 188, 190 and 190A Tynte Street, North Adelaide ("Tynte Street") from the Corporation of the City of Adelaide for $77,500.  Paul Alvaro's offer was accepted by letter from the Town Clerk dated 10 May 1983 which required the payment of a deposit of $7,750 at the expiration of a statutory "cooling off" period.  On 17 May 1983, it is apparent from an account reconstruction prepared by an officer of the ATO, a cheque in the amount of $7,750 was drawn on a bank account operated by Paul and Rosina Alvaro in the false name "Romano".  From this we infer that the deposit was paid from monies drawn from the Romano account.

By Deed of Assignment dated 22 June 1983 Paul Alvaro assigned all his right, title and interest in the contract to purchase Tynte Street to the company in consideration of the sum of $7,750.  On 27 June 1983 an amount of $69,783.44 due to the vendor on settlement was paid out of the company's operating bank account.  On that day the transfer of the property from the Corporation of the City of Adelaide to the company was registered.  The $69,783.44 paid by the company on settlement was funded by a term loan from the Commonwealth Bank to the company of $70,000.  The term loan was repaid by automatic bank transfer of $1,300 per month from the company's operating bank account (at least until 1 August 1986 after which no bank statements are in evidence).  Settlement costs amounted to $2,880.30.  Heerey J found that it was
reasonable to assume that these costs were paid by Paul Alvaro.  We see no reason to disturb this finding.

During the 1984 and 1985 financial years the Tynte Street properties were renovated at a cost of $30,584.  Mr Harmer, an accountant called at trial by the respondents, concluded that of these costs, $1,050 came from Paul Alvaro and was debited to his loan account, and the rest, $15,887 in the 1984 financial year and $13,647 in the 1985 financial year came from the company's operating bank account.  Heerey J concluded, based on "circumstantial evidence the details of which were contained in the applicant's final submissions", that these amounts came from the Romano account.

No alternative explanation as to the source of the funds used to undertake the improvements was advanced by the respondents at trial or on appeal.  There do not appear to be any identifiable drawings on the company's operating bank account which could be readily attributed to the improvements to Tynte Street and there is evidence of the depletion of cash funds from the Romano account during the relevant period.  From this we infer that funds from the Romano account were used to pay for the improvements to Tynte Street.  The real question, as will be seen, is whether the money was paid into the operating bank account of the company and then to the person or persons who undertook the improvements, or was paid directly to that person or persons.  Because of the absence of identifiable drawings on the company's operating bank account, we conclude that the funds were applied from the Romano account directly to the relevant person or persons.

In 1987 Tynte Street was given as security for a guarantee to the ANZ Bank for the repayment of a loan made to T Tigani Nominees Pty Ltd which company was the trustee of the T Tigani Family Trust.  The business operated by the T Tigani Family Trust failed and the ANZ Bank called in the guarantee seeking payment by the company of $695,448.44.  The company instituted legal action against the ANZ Bank which action was settled by a Deed of Settlement dated 15 August 1992 whereby the ANZ Bank agreed to accept $200,000 plus accrued interest from the proceeds of the sale of Tynte Street in satisfaction of the company's obligations under the guarantee.  Tynte Street was sold in late November or early December 1992 (settlement seems to have occurred on 7 December 1992) for $334,893.54.  The ANZ Bank was paid $210,509.59 pursuant to the Deed of Settlement and the costs of sale amounted to $12,361.  The remainder, $112,022.95, was paid into the Commonwealth Development Bank as a Trust Term Deposit in the name "Official Trustee in Bankruptcy as Trustee for the Estate of Paul and Rosina Alvaro".  This money was ultimately applied towards the reduction of a commercial bill facility with the consent of the Official Trustee.

630 Seaview Road, Grange
  On 14 December 1983 the company entered into a contract to purchase 630 Seaview Road, Grange ("Seaview Road") for $93,890.  The deposit of $9,389, it is apparent, was paid by cheque number 000160 drawn on Paul Alvaro's Commonwealth Bank account number 100600 at North Adelaide.  On 26 January 1984 the Commonwealth Bank approved a loan of $80,000 to the company.  The balance owing on settlement, $84,645.94, was paid from the company's operating bank account on 2 February 1984.  Costs of acquisition amounted to $3,282.  On 26 January 1984 $8,000 in
cash was withdrawn from Paul and Rosina Alvaro's Commonwealth Bank account number 5001535.  The same day $4,718 was deposited in the company's operating bank account.  It seems reasonable to conclude that the difference ($8,000 less $4,718), $3,282, represented payment by Paul and Rosina Alvaro of the costs of acquisition of the property.  The transfer to the company was registered on 31 January 1984. 

The loan was repaid from the company's operating bank account at a rate of $1,510 per month until 14 May 1987 when the balance then owing of $33,585.01 was paid out of part of the proceeds of the commercial bill facility to which we will refer below. 

Units were subsequently constructed at Seaview Road at an additional cost of $154,030.  An amount of $1,528 included by Heerey J based on the reconstruction of the PAF Trust accounts by Mr Harmer as "stamp duty" seems to be a balancing figure and may be disregarded for present purposes.

On 5 May 1987 the Commonwealth Bank approved a commercial bill facility of $187,000 gross, $176,840.46 net.  Of this, $33,589.01 was used to repay the balance of the company's fully drawn loan and $143,251.25 was credited to the company's operating bank account.  The difference between the construction costs of $154,030 and the $143,251.25 made available from the commercial bill facility is unaccounted for.  At this time the company had the benefit of the rental income from Lombard Street and Tynte Street and it is reasonable to conclude that the $10,778.75 difference was paid out of this operating income.  It also seems reasonable to conclude
that the commercial bill facility was repaid from the operating cash flow of the company which, after the construction of the units on Seaview Road, included the rental income from Lombard Street, Tynte Street and Seaview Road.  The commercial bill facility continued until 1993 appearing each year in the company taxation returns until it was discharged with the consent of the Official Trustee using the proceeds of the sale of Tynte Street.

The Share Transaction
  The company was incorporated on 22 May 1981 with Paul and Rosina Alvaro as directors.  Ten shares were allotted, nine to Paul Alvaro and one to Rosina Alvaro.  The PAF Trust was established by trust deed dated 12 June 1981.  The "specified beneficiaries" of the PAF Trust were Paul Alvaro, his spouse, child or remoter issue, any company whose shares were owned by such a person or such persons, the trustees of any other trust for such person or any charitable institution selected by the trustee.

On 21 September 1990 Paul and Rosina Alvaro executed a document excluding themselves as specified beneficiaries under the PAF Trust.  Paul Alvaro Junior, then aged 20 years, a nephew of Paul and Rosina Alvaro, and two of their nieces, Elena and Maria Alvaro, both eighteen years old, were appointed directors and were each allotted four $1 shares.

1. The Giuseppe Alvaro Transactions

   In the bankrupt estate of Giuseppe Alvaro, Paul Alvaro's brother, the
   Official Trustee sought orders in respect of five real estate properties.

18 Itala Avenue, Croydon Park
  Giuseppe Alvaro lived with his first wife, Giuseppina, at 16A Itala Avenue, Croydon Park which they had purchased in their joint names in 1972 for $15,995.  On 17 January 1977 Giuseppe Alvaro entered into a contract for the purchase of 18 Itala Avenue, Croydon Park ("Itala Avenue") the adjoining property, for $24,500.  Title to Itala Avenue was registered in Giuseppe Alvaro's name on 22 February 1977.

On 12 February 1981 the Giuseppe Alvaro Family Trust ("the GAF Trust") was established by deed.  Paul Alvaro was the trustee and the "specified beneficiaries" were Giuseppe Alvaro, his spouse, children and remoter issue.  On 27 February 1981 Giuseppe Alvaro signed a transfer of 18 Itala Avenue to Paul Alvaro "as trustee for the Giuseppe Alvaro Family Trust".  Those words have been crossed off the transfer and initialled, apparently so that the transfer conformed to Titles Office practice which did not allow trusts to appear on the register.  The transfer recorded "nil" consideration and stated the value of the property to be $24,000, although stamp duty was paid on a value of $30,400.  The transfer was registered on 5 June 1981.

10 Sierra Avenue, Grange
  On 2 March 1981 Giuseppe Alvaro's son, Carmine, entered into a contract to purchase 10 Sierra Avenue, Grange ("Sierra Avenue") for $55,000.  The property was registered in Carmine Alvaro's name on 6 April 1981.  The total purchase price paid was $55,775.  Of this, $20,000 came from a loan from the Commonwealth Bank secured by mortgage over the property.  Giuseppe Alvaro contributed $21,698.74 from savings bank accounts held as follows:  $9,939.95 by Giuseppe Alvaro as trustee for Carmine Alvaro, $8,358.79 by Giuseppe Alvaro as trustee for Concetta Alvaro, his daughter, and $3,400 by Giuseppe Alvaro absolutely.  These funds, as well as $13,400 cash, the source of which is not directly disclosed by the evidence, were deposited into an account in Carmine Alvaro's name and applied to the purchase price of Sierra Avenue.  In the absence of any evidence to the contrary, it seems reasonable to infer that the $13,400 came from Giuseppe Alvaro.

At a later time Giuseppe Alvaro received $6,800 from an insurance company in relation to a motor vehicle claim.  That amount was made over to Carmine Alvaro and applied towards the repayment of the Commonwealth Bank loan.

The Commonwealth Bank loan was repaid by monthly instalments of $204.  There is no suggestion that Carmine Alvaro did not repay the loan out of his own funds or those of his wife Rita, whom he married in 1986.  As noted by Heerey J, between the time the property was acquired and his marriage, Carmine Alvaro lived with his family and was employed as an apprentice hairdresser by his uncle, Paul Alvaro.  His wife Rita was given $3,000 by her mother upon her marriage which she banked in an account in the names of her and her husband.  At the time of her marriage, Rita Alvaro had more than $12,000 of her own funds.

For these reasons it is reasonable to infer that the Commonwealth Bank loan was repaid, apart from the $6,800 insurance money, out of funds of Carmine Alvaro
and/or joint funds of Carmine and Rita Alvaro.

8 Coronado Court, Westlakes
  On 27 December 1981 Condo Developments Pty Ltd ("Condo Developments") "or nominee" contracted to purchase 8 Coronado Court, Westlakes ("Coronado Court") for $54,000.  On 27 January 1982 Coronado Court was registered in the names of Giuseppe and his second wife Girolama Alvaro.  A substantial house was constructed upon the land and was occupied by Giuseppe and Girolama Alvaro as their matrimonial home.

The evidence surrounding the source of funds for the payment of the purchase price and construction costs is indecipherable.  Counsel were unable to assist us in any meaningful way in this regard.  Nonetheless, there seems to us to be little doubt that the purchase price and construction costs, including a loan of $30,000 from the Commonwealth Bank, were paid, directly or indirectly, out of funds provided by or on behalf of Giuseppe Alvaro.

67 George Street, Royal Park
  The Official Trustee submitted that this property was acquired and improved at least in part with the proceeds of the sale of a delicatessen called the "Arndale Deli" and that such proceeds should be treated as a contribution by Giuseppe Alvaro to the purchase price of and improvements to the property.  Accordingly, it is necessary to have regard to the circumstances of the purchase, operation and sale of the "Arndale Deli" and the application of the proceeds of its sale to the purchase and
improvement of the property at 67 George Street, Royal Park ("George Street").

On 21 July 1982 the Alvaro Family Trust ("the AF Trust") was settled, Combran Pty Ltd ("Combran") being appointed as trustee.  On 31 August 1982 Combran purchased the "Arndale Deli" for $66,392.  The purchase was funded by a term loan of $69,000 from the Commonwealth Bank.  The term loan was repaid at the rate of $1,635 per month from Combran's operating bank account until 11 January 1984.

On 11 January 1984 the balance of the term loan ($55,233.58) was paid out from a new term loan account.  The new term loan of $88,000 had been granted by the Commonwealth Bank on 10 January 1984.  Of the balance of the $88,000 new term loan, $1,616.42 was paid into Combran's operating bank account and $31,150 was paid to Cosimo and Francesca Alvaro.  The new term loan was repaid at a rate of $2,060 per month from Combran's operating bank account until 28 August 1984 when the balance of $81,206.50 was paid out of the proceeds of sale of the "Arndale Deli".

On 13 March 1984 "Giuseppe Alvaro and/or Nominee" contracted to purchase George Street for $42,000.  On 11 April 1984 the contract was settled for $42,000 with settlement costs of $1,773.  The transfer to Combran was registered on that day.  The purchase was funded by a Commonwealth Bank fully drawn loan in the amount of $43,000 which was transferred to Combran's operating bank account on 11 April 1984.  On 24 August 1984 $4,144 was transferred from Combran's operating bank account in reduction of the fully drawn loan and on 28 August 1984 the balance of the fully drawn loan ($41,668.17) was repaid from the proceeds of sale of "Arndale Deli".

The "Arndale Deli" was sold on 28 August 1984 for $165,000 plus stock at valuation of $5,220.  The costs of sale were $11,321.71 leaving $158,898.22 available for distribution.  Of this, as has been noted, $81,206.56 was applied to pay off the term loan account and $41,668.17 was applied to pay off the fully drawn loan account.  The remaining $36,023.49 was transferred into Combran's operating bank account on 10 October 1984.

In the 1984/1985 financial year two rental units were constructed at George Street at a total cost of $65,798.17.  Construction was funded as follows :-

$36,023.49-          proceeds of sale of the "Arndale Deli" drawn from Combran's operating bank account;

$20,000-          Commonwealth Bank bridging loan to Combran;

$9,774.68-          Commonwealth Bank overdraft facility.

The bridging loan was repaid by monthly debits from Combran's operating bank account until September 1986 when the loan was fully repaid.

127 Crown Terrace, Royal Park
  On 27 September 1988 Combran contracted to purchase 127 Crown Terrace, Royal Park ("Crown Terrace") for $85,000.  The contract was settled on 14 October 1988.  Stamp duty and costs of $3,287 were paid and Combran was registered on that day.

The purchase was funded by a Commonwealth Bank small business loan of $90,000.  The loan was repaid by regular deductions, initially $1,355 per month and then $500 per week, from Combran's operating bank account.

There is evidence that Giuseppe Alvaro's daughter and son-in-law, Maria Concetta and Natale Licari resided at Crown Terrace from August or September 1988 and paid rent of $120 per week to Combran.

1. The Judgment of Heerey J

In Official Trustee v Paul Alvaro, Heerey J said (at pp 21-24) :-

"The applicant correctly submitted that if a debtor purchases property with his or her own money and procures the title to be taken in the name of a third party, there can be a `disposition of property' by the debtor to the third party even though title passes directly from vendor to third party:  Trautwein v Richardson [1946] Arg LR 129 per Latham CJ at 130, per Starke J at 112 and per Dixon J at 133, Re Hermann (1916) 16 SR (NSW) 264 per Street J at 269.

Hermann was concerned with the question of `settlement' under s55 of the Bankruptcy Act 1898 (NSW). In Trautwein the court had to consider s37A of the Conveyancing Act 1919 (NSW) which makes `any alienation of property with intent to defraud creditors voidable at the instance of any person thereby prejudiced'. Dixon J pointed out (at 133) that the statute was `an attempt to re-express the text' of the Statute of Fraudulent Conveyances 1571 (13 Eliz, c5) in modern form.  The New South Wales statute was not, Dixon J said, `intended to disturb the traditional and well settled operation of this branch of law'.  Likewise, in my respectful opinion, the concepts of `disposition' and `the person making the disposition' should be construed consistently with the way in which the statutory law has been applied since the days of Elizabeth I (cf Re La Rosa;  ex parte Norgard, 7 February 1990, unreported, French J). Thus the term `disposition' in s121 must be taken to bear a somewhat extended meaning. In its ordinary meaning `disposition' is not apt to apply to a dealing with property which the alleged disponor never owned; nemo dat quod non habet.

However the statements in Trautwein and Hermann all express the
principle in terms of the debtor providing the money for the purchase.  The reason is not hard to see.  Whether the debtor pays $100,000 to X, or transfers Blackacre to X, or pays $100,000 to Y to transfer Blackacre to X, the net result is the same;  the estate of the debtor has been depleted by the disposition of money or money's worth.

But if X pays the vendor of Blackacre by borrowing the purchase price, the analysis must be different - and this is so even if the borrowing is from the debtor himself or from another lender and secured over property of the debtor.  X's borrowing from the debtor creates an equivalent asset in the debtor's estate in the form of a loan.  In neither case is there the depletion of the estate with which s121 is concerned.

In the present case, Lombard Street was purchased with funds borrowed by the Company from Mr Alvaro.  For the reasons already stated, his contribution is not to be characterised as a gift.  Even if the source of the funds was illicit, in the sense of being undisclosed assessable income, the contribution was none the less a loan.

Seaview Road was purchased with the aid of ordinary bank finance on arm's length commercial terms.

I conclude therefore that the acquisitions of Lombard Street and Seaview Road were not dispositions of property by Mr and Mrs Alvaro within the meaning of s121.  The application, insofar as it is based on s121, therefore fails at the outset in respect of those properties.

Tynte Street stands on a different footing since Mr Alvaro became the owner in equity and formally assigned his rights to the Company.  That would be a `disposition' within the ordinary meaning of the word without recourse to the historical doctrine mentioned.

As to the shares, no authority was cited to support the proposition that the issue and allotment of shares in a company is a disposition of the shares by persons controlling the company.  In the absence of specific legislative provision, such as used to exist in probate duty legislation, such a contention is in my opinion contrary to fundamental concepts of company law."

Heerey J's reasons for judgment in Official Trustee v Paul Alvaro were incorporated by reference into his Honour's reasons in Official Trustee v Giuseppe Alvaro, which were delivered on the same day.  His Honour dealt with each of the

properties in turn.

Speaking of Itala Avenue, Heerey J said, "As Giuseppe was the registered proprietor, there was clearly enough a disposition by him".

In relation to Sierra Avenue, Heerey J said (at p 18) :-

"The purchase of the property was not a disposition within the meaning of the principles discussed in Official Trustee v Paul Alvaro.  I say this because it seems on the evidence that Carmine was the moving force in the purchase.  He conducted the negotiations with the vendor's agent and arranged the mortgage loan from the bank.  Also Carmine himself provided a substantial part of the purchase price by accepting the obligations under the mortgage.  The mortgage loan, together with the $9,939.95 to which he was beneficially entitled from the trustee savings account, made up over half the purchase price.  I am not satisfied that this was a case of Giuseppe providing money to the vendor to transfer the property to Carmine."

Heerey J was satisfied that there had been a disposition of property by Giuseppe Alvaro in relation to Coronado Court.  His Honour found that the land was purchased with cash provided by or on behalf of Giuseppe Alvaro and that the cost of construction of the house, over and above the $30,000 Commonwealth Bank loan, was provided by Giuseppe Alvaro.

It is implicit in his Honour's reasoning in respect of George Street that he was satisfied that there had been a disposition of property, in the relevant sense, by Giuseppe Alvaro.

Conversely, "[f]or the reasons discussed in Official Trustee v Paul Alvaro" Heerey J found that there was no disposition of property in Crown Terrace by Giuseppe Alvaro.

1. Submissions on the Appeals

   One of the difficulties which has arisen in these appeals is that the Official Trustee sought to characterise the relevant dispositions in relation to certain properties differently from the characterisation contended for below.  It is clear from the form of relief sought in the applications, from the reasons of Heerey J and from written submissions tendered by the Official Trustee below and used as an opening, that the dispositions which were attacked were dispositions of estates or interests in the various properties.  The written opening in Official Trustee v Paul Alvaro contained the following :-

   "Legal Principles - S.121 Application

13.The applicant's primary case is based on the application of Section 121 Bankruptcy Act 1966 (fraudulent dispositions).

14.The section applies to dispositions of property.  The properties attacked are the three lands acquired out of monies supplied by the bankrupts, the disposition being the point in time when they directed that those properties be registered in the name of the company, and the transfer consequent thereon.  The act of disposition is the transfer into the name of the company."

Similarly in Official Trustee v Giuseppe Alvaro, the written opening contained the following :-

"Legal Principles - S.121 Application

14.The applicant's primary case is based on the application of Section 121 Bankruptcy Act 1966 (fraudulent dispositions).

15.The section applies to dispositions of property.  The properties attacked are the five lands acquired out of monies supplied by the
bankrupt, the disposition being the point in time when he directed that those properties be registered in the name of Paul Alvaro, Carmine Alvaro, Girolama Alvaro or the company, and the transfer consequent thereon.  The act of disposition is the transfer into the name of Paul Alvaro, Carmine Alvaro, Girolama Alvaro or the company."

In both matters, the section of the written opening dealing with s 121 of the Act concluded :-

"29.The consequence of establishing a fraudulent disposition is to render the disposition void (Section 121(1)).  In consequence the transfers into the name of the company should be set aside and transfers of the remaining lands into the name of the applicant as trustee of estate of the bankrupt should be ordered."

On the appeals, however, the Official Trustee differently characterised the relevant dispositions :-

"30.... Thus, the bankrupts over some years bestowed a fund of money and property on their families or their family trusts, and it is the bestowal of that fund that is the disposition.  The respondents take far too narrow a view.  At trial and on appeal, though to a lesser extent, they restrict disposition to the act of conveyance or disposal, and fail to appreciate the wider view.

31.In the course of argument we were asked what is the disposition, and we answered the money.  The answer is too limited.  The disposition is the fund of property (in its most general sense) bestowed upon the respondents, in whatever form that fund may be from time to time.  At present it comprises the properties, but in earlier times it may have taken and probably did take the form of monies.  In respect of Crown and George Street, it will be observed that we contend the evidence reveals a movement of the fund through businesses before being placed in the properties where it is today.  The disposition is the fund;  the fund is found today in the subject properties."

On this basis, the Official Trustee sought to "trace" the monies into the
properties and thereby, it was submitted, entitle him to a conveyance of each of the properties attacked in the absence of any other party establishing a right to or an interest in one or more of them.  It was submitted for the respondents that they would suffer prejudice if the Official Trustee was permitted to pursue this new case on appeal having regard to the way the case was run below and strategic decisions which were made in relation to the presentation of evidence.  In particular, the respondents contended that the decision not to call the bankrupts may have been reconsidered and reversed to meet the case run by the Official Trustee on the appeals, if that case had been run below.

We do not accept those submissions.  We do not think that there is any question of prejudice.  Notwithstanding the form of the relief claimed in the filed applications and the terms of counsel's written openings, there was a clear understanding at the trials that a key issue for determination was the reason for the bankrupts bestowing money and property on their family trusts and relatives.  The parties appreciated that they were concerned with payments of money, as is evidenced by the fact that the accountant, Mr Harmer, was called to reconstruct the money payments.  It follows that there can be no prejudice in giving effect to whatever conclusions flow from the evidence in respect of such payments, whether to a family trust or someone else.

1. Conclusions Regarding Disposition - Principles

   We turn to the legal principles which apply to the concept of disposition of property and the application of those principles to the facts and circumstances surrounding each property.

A payment of money whether by way of gift or loan constitutes "a disposition of property" for the purpose of s 121(1): Barton v Official Receiver (1984) 4 FCR 380 (FC) at 386, 387, 394; (1986) 161 CLR 75 (HC) at 78; Williams v Lloyd (1934) 50 CLR 341 at 364, 375; Norgard v Rocom Pty Ltd (unreported, Federal Court of Australia (FC), 16 August 1990, per Northrop and Davies JJ at 8 - 9). For the purposes of these appeals it is unnecessary to determine whether or not any payment or transfer by any bankrupt in the circumstance in which it occurred was also a "settlement" of property within the meaning of s 120 of the Act.

Where there has been a purchase of a property with money provided by a person who subsequently becomes bankrupt, it is a question of fact whether the bankrupt purchased the beneficial interest in the property or merely provided the transferee with a sum of money to purchase the property for himself (Trautwein v Richardson [1946] ALR 129 at 133 per Starke J). The distinction is an important one because it identifies the relevant "property" the subject of the disposition by the bankrupt, which is the property to be restored to the trustee in bankruptcy on the avoidance of the disposition.

As a general rule, a person who pays the vendor the purchase price of a property is entitled to the beneficial equitable estate in that property, although the legal title will pass from the vendor to the transferee. If that person subsequently passes the beneficial equitable estate to the transferee, this constitutes a disposition of property that may be avoided by the operation of s 121 of the Act. If the disposition is avoided the beneficial equitable estate in the property forms part of the bankrupt's property and vests in the trustee in bankruptcy (Williams v Lloyd at 372 - 374; In re Eichholz, decd [1959]
1 Ch 708 at 728 - 730; Barton v Vantrey Thuysen (1867) 11 Hare 126 at 129 - 130; 68 ER 1215 at 1217). Once the disposition is avoided at the option of the trustee in bankruptcy the transferee thereafter holds the property in trust beneficially for the trustee in bankruptcy (Williams v Lloyd at 374 - 375).

Where the relevant disposition of property is the beneficial interest in the fund constituted by the money provided to the transferee by the bankrupt, that is the property which is to be made over to the trustee in bankruptcy upon avoidance of the disposition, if it continues to exist in specie.  This is because upon the avoidance of the payment of money, ie the transfer of the fund, the donee's title to retain the fund as against the trustee in bankruptcy is gone and the donee thereafter holds the fund in trust for the trustee in bankruptcy.

Thus in Trautwein v Richardson where Latham CJ said (at 130) :-

"... the son urges that sec 37A deals only with dispositions made by the bankrupt, and that, for example, a transfer of land to the son by a third party at the instance of the father and paid for by the father would not fall within the statute. If such a transfer were declared void, it is argued, the result would be to revest the land in the vendor and not in the father. But the courts have not taken this view of 13 Eliz, c5, the substance of which is reproduced in sec 37A of the Conveyancing Act. The courts have treated the provisions of 13 Eliz, c5 as producing the result that property bought with the debtor's money and procured by him to be vested in a volunteer with the intent of defrauding his creditors can be treated as if it belonged to the debtor - see the cases cited in Laws of England (2nd ed), vol XV, p246; In re Mouat [1899] 1 Ch 831.  Thus there is authority to support the declarations made in the order under appeal that purchases of property arranged by the bankrupt in the name of his son were alienations of property by the bankrupt."

The Chief Justice was dealing with the situation where the acquisition of property was by the bankrupt and the title was vested in the son as a volunteer. It was not a situation where the property was acquired by the son with funds provided to the son by the bankrupt. The distinction is clear in the full unreported reasons of Latham CJ. The statement reported in (1946) ALR 129 at 130 appears at pp 9 - 10 in the unreported reasons for judgment. At p 11 of his unreported reasons Latham CJ begins a consideration of each of the dealings in issue on the appeal. The first was the Royal Hotel, Riverstone. His Honour said :-

"Royal Hotel, Riverstone.  This hotel was purchased on 15th September 1936 for £19,800 under a contract made between William Joseph East as vendor and the son as purchaser.  The bankrupt negotiated the purchase.  The hotel was transferred to the son.  £10,000 was paid to East and the son gave him a mortgage for the balance of purchase money - £9,800.

The bankrupt never owned the hotel:  he did not alienate it or transfer it.  Thus the trustee cannot obtain the hotel under either the Conveyancing Act, sec 37A, or the Bankruptcy Act, sec 94."

(Original emphasis)

As to the acquisition of the Oceanic Hotel, Coogee his Honour said (at p 15 of his unreported reasons) :-

"Oceanic Hotel.  The order declares that the son's interest in the Oceanic Hotel, Coogee, belonged to the trustee in bankruptcy on the ground that the son was at the commencement of the bankruptcy a trustee of the same for the bankrupt.

This hotel, with furniture and effects, was purchased on 14th June 1939 in the names of the son and daughter as tenants in common from the City Mutual Life Assurance Society Ltd, selling as mortgagee. The father never owned the hotel and did not alienate or transfer it. Accordingly the provisions of the Conveyancing Act, sec 37A, and Bankruptcy Act, sec 94, are of no avail to the trustee in relation to the hotel itself or to the respondent's interests in the hotel."

Starke J categorised the transactions as the purchase of properties by the bankrupt and thus within the then s 37A of the Conveyancing Act 1919 (NSW). His
Honour said (at p 17 of his unreported reasons) :-

"So in the case before the Court the purchase of property by the bankrupt in the name of the appellant and conveyed, transferred or assured to him by the vendors as arranged by the bankrupt constituted an alienation of property by him within the meaning of the Conveyancing Act and having been so purchased and assurances obtained with intent to defraud his creditors the dispositions are void at the instance of the trustee in bankruptcy."

Dixon J agreed with the trial judge that the bankrupt was at all times dealing with his own property and using the names of his relatives and others for the purpose.  It was this property which the bankrupt caused to be taken by the son to defeat his creditor, the Commissioner of Taxation.  In these circumstances his Honour said (at pp 8 - 10 of his unreported reasons) :-

"In other declarations the providing of the money by the bankrupt for the purchasing of an hotel in his son's name or the purchase of shares in his son's name is declared to be an alienation with intent to defraud creditors and to be void as against the trustee in bankruptcy.  These declarations appear to me to be in accordance with the law as established by authority under 13 Eliz c5 and I do not think that we should regard the attempt to re-express the text of the statute in modern form as intended to disturb the traditional and well settled operation of this branch of law.  Under that operation a purchase made in the name of another or in the joint names of the debtor and another has been considered property available, at the instance of creditors or a trustee in bankruptcy, for the satisfaction of debts, if the purpose of placing it in the name of the other party or in the joint names was to defeat or delay creditors:  see Stileman v Ashdown, 1742 2 Atkyns 477 and 608;  26 ER 688;  French v French 1855 6 De G Mac & G 95 at pp102 - 3;  43 ER, 1166 at 1169;  Barrack v McCullough, 1856 2 K & J, 110;  69 ER, 1043;  Neale v Day, 1858 28 LJ Ch 45;  cf re Herman (1916) 16 SR (NSW) 264;  re Player No 1 (1885) 54 LJ QB 553;  53 LJ 768:  2 Movr 261;  Brown v Bellaris, 1820 5 Madd 53;  56 ER 815, cases under bankruptcy legislation.  By analogous reasoning changes in the form of property made over by the debtor with intent to defraud have been held not to stand in the way of relief;  creditors may follow the fund:  re Mouat, 1899 1 Ch, 831.  I should add that similar reasoning applies with reference to sec 84 of the Bankruptcy Act ..."

The relevant findings of fact in Trautwein v Richardson identified the interest in land as the relevant property disposed of to a third party volunteer.  The decision does not stand as authority for the proposition that for the purposes of 13 Eliz, c5 and its modern derivatives, wherever property is acquired with money provided by a debtor or a bankrupt, the property so acquired shall be regarded as property disposed of by the debtor or bankrupt to the donee.  Whether or not the property so acquired is to be regarded as property disposed of by the debtor or bankrupt to the donee is a question of fact to be determined in each case.

1. Conclusions Regarding Disposition - Paul and Rosina Alvaro

Lombard Street
  It is not open to find or infer that the entire purchase price, paid out of the company's operating bank account, was provided by Paul Alvaro.  On 4 June 1981, Paul and Rosina Alvaro sold "Headlines" to the company which thereafter carried on the business as trustee.  The company thus had a source of income.  Even if Paul Alvaro's admissions in the criminal proceedings were admissible in evidence to prove the source of any funds, they do not go so far as to support the contention that he provided the entire purchase price.  It was for the Official Trustee, if he wished to assert that Paul and/or Rosina Alvaro had provided all the funds for the acquisition of Lombard Street, to tender evidence of that fact or from which that fact could be inferred.  The onus of establishing a right to the entirety of the asset on the basis that it represented an asset acquired solely with funds provided by the bankrupts rested upon the Official Trustee (Jack v Smail (1905) 2 CLR 684).

For there to have been a disposition of Lombard Street or an estate or interest in it within the meaning of s 121 of the Act, Paul and/or Rosina Alvaro must have acquired an estate or interest in the real estate which they or one of them passed to the company as donee (see Trautwein v Richardson per Latham CJ at 11, 15 of his unreported reasons; Union Trustee Co of Australia v Webb (1915) 19 CLR 669 at 676 per Isaacs J; Commissioner of Stamp Duties v Gale (1958) 101 CLR 91 at 108 - 109, 111 - 112 per Dixon CJ). An analysis of the factual circumstances of the purchase of Lombard Street shows that neither Paul nor Rosina Alvaro acquired any estate or interest in the property. On the evidence, it was always intended that the legal estate would pass from the vendor to the company as trustee of the PAF Trust to hold in terms of the trust deed. The position in relation to Lombard Street can be contrasted with what occurred in Trautwein v Richardson where the acquisitions by the son and daughter were either as trustee for the father or were purchased by the father exercising his right as purchaser  to direct a conveyance to a third party.

There was, however, clearly enough a disposition of $35,750 by Paul Alvaro depositing that sum into the company's operating bank account on 30 November 1981.

Tynte Street
  Upon entry into the contract to purchase Tynte Street, Paul Alvaro became the owner of the property in equity (subject to the payment of the balance of the purchase price) and thus acquired the right to have the contract specifically performed by registration of a transfer to him of title to the property (Shaw v Forster (1872) LR 5 HL
321 at 338;  In re Thackwray and Young's Contract (1888) 40 Ch D 34 at 38; Megarry and Wade, "The Law of Real Property", 5th ed, 1984 at p 601).

The relevant disposition for the purposes of s 121 of the Act was the assignment by Paul Alvaro of the rights which he had acquired under the contract, viz, the right to have the contract specifically performed subject only to a requirement to pay the balance of the purchase price. When the company paid this balance and the transfer from the Corporation of the City of Adelaide to it was registered, the contract was performed and the company's right to call for specific performance was spent. The rights and obligations of the parties under the contract merged in the transfer, there being no suggestion that the contract expressly or impliedly provided otherwise (Knight Sugar Co Ltd v Alberta Railway and Irrigation Co [1938] All ER 266 at 269 (PC); Svanosio v McNamara (1953) 96 CLR 186 at 206 - 207 per McTiernan, Williams and Webb JJ).

The property disposed of by Paul Alvaro ceased to have an independent existence at that time and there is not now in existence any property relevantly disposed of which can revest in the Official Trustee as part of Paul Alvaro's bankrupt estate.

On the appeals the Official Trustee submitted that, having regard to the large number of unexplained cash deposits to the company's operating bank account, we should infer that these deposits were made from funds of the bankrupts.  Therefore, it was submitted, monies provided by Paul and Rosina Alvaro were used to repay the $70,000 term loan which funded the purchase of Tynte Street.  The Official Trustee submitted that it was entitled to relief in respect of these payments and in respect of the
improvements paid for from the Romano bank account operated by the bankrupts, Paul and Rosina Alvaro.

The repayment of a mortgage is not a purchase of the land against which the mortgage is registered.  Where money is borrowed and used to pay the purchase price of property, that money is paid over by the purchaser as money in respect of which he or she holds the beneficial interest.  The indebtedness to the bank is merely secured by a mortgage.  Payments to the bank are payments to reduce indebtedness, they are not payments to acquire an interest in land.  In Calverley v Green (1984) 155 CLR 242, Mason and Brennan JJ said (at 257 - 258) :-

"The first question is whether the plaintiff was a contributor to the purchase price of the property, as the court of Appeal found, or whether she was not, as Rath J found.  The defendant's payment of the instalments due under the memorandum of mortgage, in accordance with the arrangement made between the parties, may be thought to be, or to be the equivalent of, the provision pro tanto of the purchase price of the property.  After all, the only  moneys which were actually paid out of what the parties had owned before settlement of the contract for the purchase of the Baulkham Hills property or out of what they had earned thereafter had come out of the defendant's pocket.  The property was purchased on the basis that the purchasers should pay it off over twenty years, a basis familiar to many home buyers.  It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home.  The purchase price is what is paid in order to acquire the property;  the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed.  In this case, the price was $27,250, of which $18,000 was borrowed from the mortgagee by the plaintiff and defendant jointly.  The balance was paid by the defendant out of his own funds, being part of the proceeds of the sale of the Mount Pritchard property.  Thus the plaintiff and defendant both contributed to the purchase price of the Baulkham Hills property.  They mortgaged that property to secure the performance of their joint and several obligation to repay principal and to pay interest.  The payment of instalments under the mortgage was not a payment of the purchase price but a payment towards securing the release of the charge which the parties created over the property purchased."

(cf Bloch v Bloch (1981) 55 ALJR 701; 37 ALR 55).
  Therefore, even if it is inferred that the bankrupts' monies were used to repay the loan which funded the acquisition of Lombard Street, there has been no disposition or acquisition of an interest in that property by Paul and/or Rosina Alvaro or the company by virtue of repayment of the bank loan.

For the purposes of s 121 of the Act, the payment of monies by Paul and Rosina Alvaro to the company, which monies were used by the company to retire debt owing by it, must be treated as a disposition or a series of dispositions of money by Paul and Rosina Alvaro to the company.

The payment by Paul and Rosina Alvaro of the costs of the improvements to Tynte Street out of the Romano account must be treated the same way.  That is, not as a disposition of any estate or interest in Tynte Street, but as a disposition, or a series of dispositions of money by Paul and Rosina Alvaro to the person or persons who undertook the improvements.

Of the $30,584 expended on the improvements to Tynte Street, $1,050 came from Paul Alvaro and the remainder from the Romano account operated by him and his wife.   In the absence of any evidence to the contrary, the inference to be drawn is that the monies withdrawn from the Romano account were  jointly owned by Paul and Rosina Alvaro (Paget's Law of Banking, 8th ed, Butterworths 1982 at 134;  Croton v The Queen (1967) 117 CLR 326 at 338, 340; Catlin v Cyprus Finance Corporation (London) Ltd [1983] 1 QB 759 at 770 - 771). Therefore there was a joint disposition by Paul and Rosina Alvaro of $29,534 and by Paul Alvaro of $1,050 to the person or
persons who undertook the improvements.

Paul Alvaro also paid the sum of $2,880.30 being the costs associated with the acquisition and registration of the land in the name of the company.  Those costs did not form part of the purchase price but were costs to the company of and incidental to procuring registration of the transfer from the registered proprietor.  The payment of those costs by Paul Alvaro operated as a disposition by him of $2,880.30 to the solicitors.  The $7,750 deposit paid out of the Romano account was expressed to be the consideration for the assignment by Paul Alvaro of his right, title and interest in the contract to purchase Tynte Street.  For reasons stated earlier, that interest ceased to exist on the transfer of the legal estate upon conveyance.  Nonetheless, there was a joint disposition of an amount of $7,750 by Paul and Rosina Alvaro.

Seaview Road
There is no evidence to suggest that Paul Alvaro was the purchaser of Seaview Road or that the title to Seaview Road was acquired for the company by Paul Alvaro exercising a power or right to direct the conveyance to it. The company acquired Seaview Road itself as purchaser subject to the terms of the PAF Trust. There was, therefore, no disposition of any estate or interest in Seaview Road by Paul Alvaro in respect of which s 121 of the Act would have an application.

To the extent that, if at all, funds of Paul and/or Rosina Alvaro were deposited by them into the company's operating bank account and applied to the repayment of the Commonwealth Bank loan and the commercial bill facility, the
principles discussed in relation to Tynte Street apply. Any funds so deposited and applied must, for the purposes of s 121 of the Act, be treated as dispositions of money by Paul and/or Rosina Alvaro to the company.

The other relevant dispositions in relation to Seaview Road were the $9,389 deposit paid by Paul Alvaro on 14 December 1983 and the $3,282 costs of acquisition of the property paid to the solicitors by Paul and Rosina Alvaro.

The Share Transaction
  We are unaware of any authority which would support the contention that the issue and allotment of shares in a company is a disposition of property by the persons controlling the company.  We agree with Heerey J that such a contention is contrary to the fundamental concepts of company law.  The Official Trustee fails at the outset in respect of the share transaction.

1. Conclusions Regarding Disposition - Giuseppe Alvaro

Itala Avenue
There can be no doubt that the transfer of Itala Avenue from Giuseppe Alvaro to the GAF Trust on 5 June 1981 was a disposition of Giuseppe Alvaro's right, title and interest in the property for the purposes of s 121 of the Act.

Sierra Avenue
  Giuseppe Alvaro did not acquire any estate or interest in Sierra Avenue.  On the evidence, his son Carmine purchased the property.  Giuseppe Alvaro's role in the purchase was to assist his son in the endeavour by money contributions.  He did not acquire the property and direct a transfer to his son.  It is these contributions, namely the $21,698.74 held in various savings bank accounts, the $13,400 cash and the $6,800 insurance claim money which are the relevant dispositions for present purposes.

Coronado Court
  The facts and circumstances surrounding the purchase of Coronado Court by Condo Developments and the registration of it in the joint name of Giuseppe Alvaro and his wife where Giuseppe Alvaro provided the entire purchase price are reminiscent of those in Trautwein v Richardson.  In our view Giuseppe Alvaro was the true purchaser of Coronado Court and disposed of, in the relevant sense, a one-half interest in it to his wife, Girolama, upon registration on 27 January 1982.

The provision by Giuseppe of the funds to undertake the improvements, at least for the purposes of s 121 of the Act, is to be treated differently. That is, it is to be treated as a series of dispositions of money to the person or persons who undertook the improvements or in the case of the repayment of the $30,000 loan from the Commonwealth Bank, as a series of dispositions of money into the general funds of the bank to retire debt.

George Street
  There is no basis to treat the acquisition of the "Arndale Deli" as other than an acquisition of an operating business by Combran as trustee of the AF Trust funded by way of a loan from the Commonwealth Bank.  Those funds of Giuseppe
Alvaro, if any, deposited into Combran's operating bank account and applied to the repayment of that loan must be treated conformably with the approach set out above in relation to Tynte Street and Seaview Road.  A similar approach should be taken in relation to all other money said to have been paid by Giuseppe Alvaro into Combran's operating bank account and applied to the repayment of the loans used for whatever purpose.  On this basis, the Official Trustee's submission that the proceeds of sale of the "Arndale Deli" used to acquire George Street should be treated as a contribution by Giuseppe Alvaro to that acquisition is misconceived.

Upon entry into the contract to purchase George Street on 13 March 1984, Giuseppe Alvaro acquired the right, subject to the payment of the purchase price, to require a conveyance of the property to himself or his nominee.  When the conveyance to Combran was complete, that right was spent and all of the parties' rights under the contract merged in the conveyance (see the analysis in relation to Tynte Street).

In our view, Giuseppe Alvaro was not the true purchaser of George Street.  He paid no part of the purchase price and acquired no interest, legal or equitable, in George Street.  Any rights he acquired were contractual rights which, for the reasons set out in relation to Tynte Street, ceased to have separate existence upon completion of the conveyance to Combran.  There was no disposition of any interest in George Street by Giuseppe Alvaro.

Crown Terrace
  Crown Terrace was purchased by Combran and financed by a Commonwealth Bank small business loan.  At no time did Giuseppe Alvaro acquire any estate or interest in the property.  Therefore, there can have been no disposition by him of any such estate or interest.

On the appeals the Official Trustee submitted that, having regard to the difference between the actual income earned from Crown Terrace and the monthly and then weekly repayments made, Giuseppe Alvaro must have made contributions to Combran's operating bank account to enable the small business loan to be repaid. Conformably with the approach taken in relation to other monies contributed by the bankrupts and applied to the repayment of the bank loans, such monies, if in fact so contributed, must be treated as a series of dispositions of money for the purposes of s 121 of the Act.

INTENTION TO DEFRAUD CREDITORS

1. The Criminal Proceedings

   During the period of the 1978 to 1984 financial years, Paul, Rosina and Giuseppe Alvaro failed to declare substantial amounts of otherwise assessable income.  Paul and Rosina Alvaro's only disclosed source of income during this period was the small amount derived from the hairdressing business "Headlines", which they operated in partnership.  Similarly, Giuseppe Alvaro's only disclosed sources of income for most of the years in question were social security payments and rental income.  His declared income for the relevant years ranged between $5,171 and $8,370.

The ATO had been conducting investigations into the taxation affairs of
Paul, Rosina and Giuseppe Alvaro and in February 1985 issued amended tax assessments against Paul Alvaro for the 1978 to 1984 financial years and against Rosina Alvaro for the 1978 and 1980 to 1984 years and against Giuseppe Alvaro for the 1979 and 1981 to 1983 years.  The amended assessments were challenged unsuccessfully by each of them.

A combined National Crime Authority ("NCA") and ATO task force was established in 1988 to investigate the affairs of Paul, Rosina and Giuseppe Alvaro and other members of the extended Alvaro family.

On 25 September 1989 Paul, Rosina and Giuseppe Alvaro, amongst others, were charged with conspiracy to defraud the Commonwealth under the Crimes Act 1914 (Cth)("the Crimes Act"). During the course of committal proceedings before Mr Harris SM, which commenced on 14 May 1990, negotiations took place between Mr Brian Martin QC and Ms Robyn Layton on behalf of the Commonwealth Director of Public Prosecutions ("DPP") and counsel for the Alvaros. On 27 September 1990 Paul, Rosina and Giuseppe Alvaro and the other defendants entered pleas of guilty to charges of conspiracy to defraud, between 1978 and 1984, contrary to s 86(1)(e) of the Crimes Act and acknowledged the commission of a similar offence between 1984 and 1990.

Counsel for the DPP and for the various defendants participated in the preparation of a number of documents:  a "heads of agreement", an "Agreed Statement of Facts" covering all the accused and separate statements by each of them.  The "Agreed Statement of Facts" was as follows :-

"INTRODUCTION

1.The essence of the Crown case is that three brothers Giuseppe, Cosimo and Paul Alvaro conspired together to defraud the Commissioner for Taxation by concealing taxable income, Thomas Tigani and the wives of Cosimo and Paul Alvaro, namely, Francesca and Rosina Alvaro, joined the conspiracy and participated in a limited way.

2.The conspiracy was hatched in approximately 1978/79 and continued until about 1990 during which time tax returns were submitted to the Commissioner understating the taxable income of the three Alvaro families in each year and, following betterment assessments and other enquiries by the Commissioner of Taxation, the conspirators gave false information to the Commissioner through their accountant, Mr Rugari and took extensive steps to cover up the failure to disclose income.

3.Australian Tax Office investigations commenced in 1983 and are continuing.  Assessments raised for each of the financial years, have been met by the lodging of objections which contained false information as to ownership of assets, sources of income and expenses together with voluminous correspondence containing false information.

4.The primary methods of disguising or concealing assessable income were centred upon the purchase of real estate, the operation of undisclosed bank accounts, the use of bookmakers and a travel agent in order to falsely represent assessable income as being non-assessable, the purchase of cars and the creation of numerous false loans evidenced by false statutory declarations and/or false acknowledgements of debt to support such loans.

Over the period 1978-1989 there have been 19 properties owned or purchased by or through the 3 Alvaro families.  Details of those dealings and current holdings are set out in the respective signed statements of fact signed by each defendant.

These properties have variously and in part been purchased with undeclared assessable income.

Over ten years, the three Alvaro families have operated between them in excess of 100 bank accounts.  Some of these bank accounts were opened and closed after being in operation for only a week, some were in false names and others were in the names of relatives but were operated for their own benefit.  Other accounts were opened by Cosimo Alvaro and Giuseppe Alvaro as trustee accounts for children but were used for their own purposes and not for their stated beneficiary.

5.The Australian Taxation Office estimates investigations costs in the vicinity of $1,000,000 and those of the National Crime Authority are estimated to be in excess of $2,500,000.00.

6.The main particulars of the involvement of each defendant are set out in separate memoranda."

The content of the statements of Paul and Giuseppe Alvaro are important to a submission made by the Official Trustee.  Paul Alvaro's statement was as follows :-

"I, PAUL ALVARO of 11 North East Road, Collinswood in the State of South Australia, Hairdresser, admit that I am guilty of Conspiracy to Defraud the Commissioner for Taxation over the period 1978 to 1984 inclusive as charged in the Information and thereafter until 1990 and I agree to the following facts for the purposes of sentencing.

1.Over the period 1978 to 1987 I declared assessable income to the Commissioner for Taxation totalling $77,243.00 which income was derived partly from my hairdressing business.  That figure comprised the following:

YEARDECLARED ASSESSABLE INCOME

1978$ 7,054.00

1979$ 4,998.00

1980$ 3,753.00

1981$ 5,857.00

1982$ 3,987.00

1983$15,288.00

1984$ 7,020.00

1985$ 9,460.00

1986$14,772.00

1987$ 5,054.00

2.Over the same period my wife Rosina declared the following assessable income:

YEARDECLARED ASSESSABLE INCOME

1978Nil

1979Nil

1980$ 3,488.00

1981$ 5,857.00

1982$ 3,987.00

1983$12,787.00

1984$ 7,010.00

1985$12,979.00

1986$13,137.00

1987$ 3,644.00

Making a total of $62,899.00.

3.Over the period from 1978 to 1987 I received certain additional assessable income other than that declared in the taxation returns.  The DPP upon the basis of their calculations according to a betterment assessment method allege a minimum omitted income to be as follows :-

YEAROMITTED INCOME

1978$ 28,577.00

1979$  6,016.00

1980$ 53,816.00

1981$ 80,624.00

1982$107,060.00

1983$ 23,657.00

1984$ 58,191.00

1985$ 54,645.00

1986$ 34,088.00

1987$ 25,974.00

The DPP alleges that a total of $472,264 was omitted and a total taxation evaded was approximately half namely $236,132.  I agree that tax at the rate of approximately 50% is payable upon my omitted income.

In addition to the above tax liability I understand that pursuant to Section 224 of the Income Tax Assessment Act I am liable for an amount of up to 200% of the said sums at the discretion of the Commissioner for Taxation.

I acknowledge that my wife and I omitted at least $200,000 assessable income.  I agree that, for the purposes of sentencing, it is unnecessary for the sentencing judge to resolve the dispute as to the total omitted income (which dispute is currently before the Federal Court) as I agree that the difference is not relevant to issues of sentence.

4.Over the said period my wife and I have purchased and/or sold the following assets :-

(1)22 Prinse Street, West Beach purchased on 25.6.76 for $16,762.00 and on which a house was built in 1976/77 for
$33,500.00 and further improvements in 1983 amounting to $15,000.00.  This property was sold on 30th November, 1984 for $150,000.

(2)588-594 Seaview Road purchased on 29 August, 1980 for $73,000 in our names and later transferred to the Family Trust P & R Alvaro Enterprises Pty Ltd.  The property consisted of 4 shops and was sold on the 22.6.84 for $120,000.

(3)12-18 Lombard Street, North Adelaide purchased in the name of the Family  Trust P & R Alvaro Enterprises Pty Ltd on the 30.11.81 for the sum of $40,000.00 which consists of 3 flats.

(4)188-190A Tynte Street, North Adelaide purchased on 27th June, 1983 by me and later transferred into P & R Alvaro Enterprises Pty Ltd being 2 shops and 2 units in the sum of $77,500.00.

Itala Avenue
  Giuseppe Alvaro disposed of the legal and equitable estate in Itala Avenue to the GAF Trust with the requisite intent.  The Official Trustee is entitled to a declaration in the terms sought and an order which will allow that declared interest to be realised.

George Street

For the reasons stated in relation to Tynte Street, the Official Trustee is not entitled to relief in respect of this property.

Crown Terrace
  For the reasons expressed in relation to Tynte Street, the Official Trustee is not entitled to relief in relation to Crown Terrace.

SHAM

1. The Judgment of Heerey J

   In Official Trustee v Paul Alvaro Heerey J cited authorities on sham, including Sharrment Pty Ltd v Official Trustee (1988) 18 FCR 448 (FC), before concluding (at 46) :-

   "In the circumstances of the present case, once an intent to defraud creditors is negated, a conclusion of sham is impossible to draw.  The acquisitions in question were, I find, intended to take effect and be governed in accordance with the rights and duties created by the establishment of the Company and the Trust.  There were no underlying `real' transactions which the Company and the Trust were designed to conceal or disguise."

Similarly in Official Trustee v Giuseppe Alvaro Heerey J rejected the argument of sham in relation to those properties for which it had been put forward (Itala Avenue, George Street and Crown Terrace) on the basis that he was not satisfied that there had been an intention to defraud.

1. Submissions on the Appeals

   In written submissions filed in Official Trustee v Paul Alvaro, the Official
   Trustee said under a heading "sham" :-

   "If the intent of the persons who control the trust is to use the trust as a vehicle to perpetrate their fraud, then the trust is a sham.  The intent of the bankrupts at the time of each of the targeted dispositions to the trust was to conceal their income and their unexplainable and illegitimate escalation in their wealth.  They admitted so.  The trust was a manifestation of the bankrupts who were the sole shareholders and controlling trustees.  The trust was used by the bankrupts to advance their fraudulent scheme of concealment and ignored for most other purposes.  The trust was used as the apparent owner of the subject properties in order to create an illusion that someone other than the bankrupts owned the properties.  The act of transfer did not intend to create the rights and obligations that goes with a transfer as the true beneficial owners of the properties were the bankrupts.

The Learned Judge did not err in his statement of legal principle, but did in the application of those principles to the evidence.  He acted upon his conclusion that the intent to defraud had been negated, and so concluded that a sham was impossible to draw.  He found the acquisitions were intended to take effect and be governed in accordance with the rights and duties created by the establishment of the Company and the Trust.  There were no underlying `real' transactions which the Company and the Trust were designed to conceal or disguise.  The findings lack evidentiary support, for none of the respondents gave evidence that this was so.  To the contrary, by their admissions the bankrupts said they had purchased the properties and provided the money, and by their conduct described earlier, acted as if the properties were their own."

(Original emphasis)

In Official Trustee v Giuseppe Alvaro, the Official Trustee submitted, to similar effect, that the trusts were established only to conceal the assets of Giuseppe Alvaro and as such, were shams.

The respondents in each appeal relied upon the findings and reasons of Heerey J.

1. Conclusion on the Appeals

In Sharrment Lockhart J, after a review of the authorities on the meaning of "sham", concluded (at 454) :-

"A `sham' is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be.  It is a spurious imitation, a counterfeit, a disguise or a false front.  It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not.  It is something which is false or deceptive."

Lockhart J, correctly in our view, treated the question of whether a transaction is a sham as a question of fact.  His Honour noted that a transaction will not necessarily take on the character of a sham merely by the presence of certain elements of sham, eg artificiality.  Of relevance to the present appeals are his Honour's further observations on two of the elements he discussed (at 455) :-

"Fourthly, a purported disposal of property, and by analogy a purported creation of a debt, may be a sham where donor and donee (or lender and debtor) do not intend to give effect to the transaction, it being agreed between them that there will be no change in the legal and beneficial ownership of the property.  The fact that Mr Wynyard continued to act as thought The Chase was in his control may give rise to an inference that the transactions which led to its being purchased in the name of Seyta with funds apparently the funds of Seyta were a sham.

Fifthly, the fact that the transactions of 1979 may have been intended by Mr Wynyard to present a shield against creditors does not, absent the transactions being set aside under the relevant provisions of the Bankruptcy Act, characterise them as a sham.  The transactions may in themselves be legally effective although intended to achieve an inacceptable purpose.  In Miles v Bull (supra) Megarry J said (at 264):

`A transaction is no sham merely because it is carried out with a particular purpose or object.  If what is done is genuinely done, it does not remain undone merely because there was an ulterior purpose in doing it.'

Megarry J went on to observe (at 264) that in the context of determining whether a sale of property was a sham so as to allow a defence to an action for possession that:

`mere circumstances of suspicion do not by themselves establish a transaction as a sham;  it must be shown that the outward and visible form does not coincide with the inward and substantial truth'.

The characterisation of a sham adopted by Megarry J in Miles v Bull is consistent with that adopted by Windeyer J in Scott's case at 279, in the passage which I cited above.  Following a thorough review of the earlier authorities, Windeyer J there defined the issue as whether the parties who entered the ostensible transaction

`... mean it to be in truth their transaction, or did they mean it to be, - all these words have been metaphorically used - concealing their real transaction ...'"

A similar approach was taken by Beaumont J (at 18 FCR 449 at 468 - 469) and by Foster J (at 473 - 474).

There is nothing in the evidence to indicate that any party to any transaction intended that no effect be given to it and that there be no change in the legal or beneficial ownership of the property the subject of the transaction.  Rather, on the whole of the evidence the contrary inference is to be drawn.  It was the intention of the relevant bankrupt that each of the transactions to which the bankrupt was a party be real and effective to pass the property from the bankrupt as donee and to place it in the hands of others.  In certain of the transactions an intended effect of each transaction was to place the property beyond the reach of the Commissioner as a creditor in the event of the undisclosed income being discovered and the bankrupt being assessed to income tax upon it.  In others, the intended effect of the transaction was to advance a family member as part of an ordinary family provision unconnected with its effect on any creditor or future creditor.

The appellant has not shown that Heerey J erred in holding that the
transactions in issue were not shams.

RESULTING TRUST

1. The Judgment of Heerey J

In Official Trustee v Paul Alvaro, Heerey J said (at pp 46 - 47) :-

"This doctrine has no application because, first, the purchase price of the properties was provided by way of loan and in any event there was an intention on the part of Mr and Mrs Alvaro that the Company should hold the three properties subject to the express terms of the Trust:  see Sharrment at 471 - 473 per Beaumont J."

Similarly, in Official Trustee v Giuseppe Alvaro Heerey J did not think that the doctrine applied to any of the transactions in relation to which it had been said to have application.

1. Submissions on the Appeals

In Official Trustee v Paul Alvaro, it was submitted by the Official Trustee that :-

"The application was further based on the application of the principles of resulting trust, the properties being acquired with bankrupts' monies on their own admission.  The relevant principle is that where a person provides the money to purchase the property, there is a presumption (rebuttable) that it was not intended the other person take beneficially.

The Learned Judge found the principle had no application because money was borrowed from the Commonwealth Bank to finance in part the acquisition of some of the lands.  That was not significant.  Where the Appellant takes properties by reason of a resulting trust, he does so subject to the loans from banks and financiers employed in purchase of the properties.  The banks and financiers acquire no proprietorial interest in the properties, and confer none on the lender merely by reason of advancing the monies.  In any event, where the loan has been serviced and ultimately discharged out of monies supplied by the bankrupts, the use of bank facilities is immaterial.

The presumption of resulting trust is rebuttable, that being by a contrary intent of the bankrupt being proved.  The `contrary intent' that must be established is that the bankrupts did not intend to retain a beneficial interest in the monies, or in the lands acquired by use of those monies.  The Learned Judge found the contrary intent was established, though he heard no evidence from the bankrupts to that effect and regarded Paul Alvaro as a person who would lie to further his ends."

In Official Trustee v Giuseppe Alvaro the argument on resulting trust was pursued only in respect of Itala Avenue and Sierra Avenue.  In relation to Itala Avenue, the Official Trustee said :-

"... The property was conveyed, as the transfer said, for no consideration.  It was a gift, in favour of the bankrupt should he so desire (for there could be no doubt the trustee Paul Alvaro would have done whatever the bankrupt asked of him)."

Of Sierra Avenue, the Official Trustee said :-

"The Learned Judge rejected a resulting trust on the ground that it did not arise where the money was provided as a gift, and then applied in purchase.  He applied the principles of advancement.  The finding of gift begged the question.  Every case of resulting trust may be characterised as a gift, and often is by those who seek to retain the property.  The law implies a resulting trust not absolutely, but as a presumption which may be rebutted.  If the money was a gift, no resulting trust arises whether the money follows a route through the beneficiary or goes directly to the vendor.  The issue was whether it was a gift.  The principle of advancement is no more than a presumption of gift where the money is advanced by a father to a son, daughter, or wife.  It is rebuttable.  The two principles work together.  Their result is that in a case such as this, it is presumed the bankrupt advanced the money/land to Carmine unless the evidence rebuts it.  The evidence will rebut it where it establishes a different motive for the payment, that being the intention to conceal assets belonging to the father/bankrupt under the son'[s name.  Such is the case here.  If established by cogent evidence, the presumption of advancement fails.  There is cogent evidence where the father/bankrupt admits the property was acquired in the son's name pursuant to a scheme to defraud the Commissioner of Taxation by concealment of assets, or where other evidence establishes on the probabilities that it was done to defraud the Department of Social Security."

1. Conclusion on the Appeals

   In Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 Aickin J, in a judgment agreed in by Gibbs ACJ, Mason, Murphy and Wilson JJ, said (at 158) :-

   "The law with respect to resulting trusts is not in doubt.  Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the casey may be.  This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass."

(See also Calverley v Green at 246 - 247; Muschinski v Dodds (1985) 160 CLR 583 at 590, 598 - 599, 604, 612).

The analysis of each of the transactions set out in these reasons denies the factual basis for the operation of the presumption of the creation of a resulting trust in favour of the relevant bankrupt.  This is the view to which Heerey J came in his reasons for judgment set out above.  In our opinion his Honour was correct.

COSTS
  The arguments presented by the appellant to Heerey J were different to those presented on the appeals.  They were substantially misconceived.  Except in relation to the disposition of the right, title and interest in Itala Avenue by Giuseppe Alvaro the appellant is not entitled to a transfer of any of the properties themselves.  Moreover, the appellant has achieved only limited success in relation to both applications.  Bearing these
matters in mind it seems to us that it would be unfair to order the respondents to pay the whole of the Official Trustee's costs.  We think that, in Official Trustee v Giuseppe Alvaro the bankrupt and the trustee of the trust should be ordered to pay one-half of the Official Trustee's costs, both at first instance and on appeal.  The Official Trustee should pay the costs incurred by respondents to that case who were successful in resisting the applications and were represented separately from the bankrupt;  that is, Girolama Alvaro and Carmine Alvaro at first instance and Carmine Alvaro and Rita Alvaro on appeal.  However, as Carmine Alvaro and Rita Alvaro are husband and wife and appeared to defend the same interest, their costs should be assessed on the basis of their being jointly represented.

In the case of Official Trustee v Paul Alvaro, the Official Trustee obtains some relief by our orders.  The it is a different form of relief than that sought before Heerey J and is limited in extent.  In the circumstances, we think that there should be no order for costs at firs instance, as between the Official Trustee, the bankrupts and the trustee, but that the bankrupts and the trustee should pay thirty percent of the Official Trustee's costs of the appeal.  Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro have succeeded in resisting any orders in connection with the share allotment.  It is not apparent to us that they incurred any costs, either at first instance or on appeal, that were not incurred in any event in connection with the representation of others.  If they did, they should recover those costs from the Official Trustee.  We will order accordingly.

IN SG 85 OF 1994 THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders made by Heerey J on 31 October 1994 be set aside and, in lieu thereof, it be ordered that:

   (a)a declaration be made that the transfer by Giuseppe Alvaro on 5 June 1981 of his right, title and interest in the house property at 18 Itala Avenue, Croydon Park, South Australia to Paul Alvaro as trustee of the Giuseppe Alvaro Family Trust is void as against the Official Trustee in Bankruptcy;

   (b)Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) take all necessary steps and do all necessary things to enable title in the house property at 18 Itala Avenue, Croydon Park, South Australia to be transferred to the official Trustee in Bankruptcy as trustee of the bankrupt estate of Giuseppe Alvaro;

   (c)Giuseppe Alvaro and Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) pay to the Official Trustee in Bankruptcy one half of the costs incurred by him in relation to the proceeding;  and

   (d)the Official Trustee in Bankruptcy pay to Girolama Alvaro and Carmine Alvaro the costs incurred by each of them in relation to the proceeding.

2. Giuseppe Alvaro and Paul Alvaro (as trustee of the Giuseppe Alvaro Family Trust) pay to the Official Trustee in Bankruptcy one half of the costs incurred by him in relation to the appeal.

3. The Official Trustee in Bankruptcy pay to Carmine Alvaro and Rita Alvaro the costs incurred by them in relation to the appeal, such costs being assessed as if those two people were jointly represented on the appeal.

4. The parties have liberty to apply for any further orders or directions as may be required to give effect to these declarations and orders.

IN SG 86 OF 1994 THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by Heerey J on 31 October 1994 be set aside and, in lieu thereof:

   (a)a declaration be made that:

   (i)the disposition of $35,750 made by Paul Alvaro on 30 November 1981 to P & R Alvaro Enterprises Pty Ltd is void as against the Official Trustee in Bankruptcy;

   (ii)the house property 14-16 Lombard Street, North Adelaide, South Australia, is charged with the payment to the Official Trustee in Bankruptcy of $35,750 plus interest at ten percent per annum from 2 December 1992;

   (iii)the disposition of $9,389 made by Paul Alvaro on 14 December 1983 is void as against the Official Trustee in Bankruptcy;  and

   (iv)the house property at 630 Seaview Road, Grant, South Australia is charged with the payment to the Official Trustee in Bankruptcy of $9,389 plus interest at ten percent per annum from 2 December 1992;  and

   (b)The Official Trustee in Bankruptcy pay to Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro any costs incurred by them in the proceeding that are not costs that were incurred in connection with the representation of any other party.

3. Paul Alvaro, Rosina Alvaro and P & R Alvaro Enterprises Pty Ltd (as trustee of the Paul Alvaro Family Trust) pay to the Official Trustee in Bankruptcy thirty
   percent of the costs incurred by him in relation to the appeal.

4. The Official Trustee in Bankruptcy pay to Paul Alvaro Jnr, Elena Alvaro and Maria Concetta Alvaro any costs incurred by them in the appeal that are not costs that were incurred in connection with the representation of any other party.

5. The parties have liberty to apply for any further orders or directions as may be required to give effect to these declarations and orders.

I certify that this and the preceding One hundred and one (101) pages are a true copy of the reasons for judgment herein of their Honours Justices Wilcox and Cooper.

Date:22 May 1996

Associate

IN THE FEDERAL COURT OF AUSTRALIA )
  )
QUEENSLAND DISTRICT REGISTRY     )        No. SG 85 of 1994
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE
             OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND:                   GIUSEPPE ALVARO, GIROLAMA ALVARO,

PAUL ALVARO, CARMINE ALVARO, COMBRAN
  PTY LTD, RITA ALVARO and MARIA
  CONCETTA ALVARO

Respondents

No. SG 86 of 1994

BETWEEN:               THE OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND:                   PAUL ALVARO, ROSINA ALVARO,
  P & R ALVARO ENTERPRISES PTY LTD,
  PAUL ALVARO JNR, ELENA ALVARO and
  MARIA CONCETTA ALVARO

Respondents

JUDGES MAKING ORDER:    Wilcox, Cooper and Moore JJ

WHERE MADE:            Sydney (Heard in Adelaide)
DATE OF ORDER:         22 May 1996

REASONS FOR JUDGMENT

MOORE J:  I have read the comprehensive reasons for judgment of Wilcox and Cooper JJ and, save in relation to one matter, I agree with them.  I agree with the orders they propose.

The point on which I am not in entire agreement is the use that could be made of the admissions of the bankrupts in the criminal proceedings.  In issue is whether they can properly be treated as evidence against all parties or only the bankrupts.  The admissions may be viewed in one of two ways.  First as statements potentially probative in the proceeding generally of the intention of the bankrupts in relation to their acts though made some years after the acts themselves.  The second is as admissions, in the sense of an out of court statement made by a party adduced to prove, as against that party, the truth of what was stated.  As admissions in this sense the admissions in the criminal proceedings would be probative of the bankrupts' intention in relation to their earlier acts but as evidence against them only.  If so, it would otherwise be inadmissible hearsay evidence in relation to other parties.

However in R v Walton (1989) 166 CLR 283, which I discuss in detail shortly, there is to be found support for the view that in appropriate circumstances, a statement by a person about their state of mind is primary evidence of the person's state of mind if that is an issue in the proceedings. It is not hearsay.

If the admissions are intended to be proof generally of the intention of the bankrupts, on one view of the present state of the authorities, the statements in the admissions evidencing intention are not admissible.  That is because only statements of intention made at the time the act in question occurred, are admissible.  Support for that approach is found in Phipson on Evidence, 14th Edition in para 16-02:

"Whenever the physical condition, emotions, opinions and state of mind of a person are material to be proved, his statements indicative thereof made also or about the time in question may be given in evidence."

However the compendious expression "physical condition, emotions, opinions and state of mind" comprehends a range of matters that might each warrant a different approach.

Unaided by authority, it may be accepted that a statement made by a person about his or her state of mind at the time the statement is made is more likely to provide a useful and reliable means of proving the state of mind than any statement  made some time later.  A clear example would be a person's statement that, at the time the statement was made, they were angry.  A statement made a month later that they were, at a point a month earlier, angry might be viewed as of little, if any, probative value.  However can the same be said of a statement, and especially one against interest, made some years after the event concerning the purpose for which conduct of some moment was undertaken by a person.  There is no reason readily apparent why the statement of a person, made months or even years after they entered a financial arrangement, that they intended to defraud the Commissioner of Taxation by the arrangement is, in character, any different to one made at the time the arrangement was entered.  While it may be accepted that facts peculiar to a particular case might indicate
otherwise, generally a person could be expected to retain a reliable recollection of the reason why they entered such a financial arrangement for some time, and probably some considerable time, after having done so.  There is, of course, the possibility of concoction or fabrication if the statement is made some time after the event though that is improbable if the statement is against interest.  Even if not, the possibility of concoction or fabrication might be viewed as a matter going to the weight of the evidence having regard to the subject matter of the statement and the circumstances in which it was made.

In R v Walton (supra), The High Court had to consider the issue of both the proper characterisation of evidence of an out of court statement by a person about their state of mind and intention and the purpose for which such evidence might be admitted.  That case concerned events quite different from the present.  It concerned, relevantly, evidence in a murder trial of a statement by the deceased that a person, the accused, was on the phone and a statement made shortly before she was killed that she intended to meet the accused.  The majority consisted of Wilson, Dawson and Toohey JJ, who gave a joint judgment, and Mason CJ.  Though dissenting Deane J indicated he agreed with Wilson, Dawson and Toohey JJ in relation to one proposition relevant to this appeal.

Mason CJ made plain his view at 288 and 289 that statements by a person about his or her intentions or state of mind may be admitted as original evidence to prove the intentions of the maker of the statement.  The Chief Justice goes on to consider authorities concerning the probative effect of statements of immediate intention and the admissibility of express or implied assertions of fact in an out of court statement.  That latter matter involved consideration of whether admissibility depended upon the statement having been made contemporaneously with the intended conduct or having been made spontaneously.  Spontaneity and contemporaneity bear upon whether the hearsay element of an out of court statement might be admitted as proof of the truth of the fact asserted in the statement.  These are issues somewhat removed from the issue in this appeal.  It must be accepted however, that at 288.5 the Chief Justice appears to suggest that admissible is dependent upon contemporaneity even if intention is itself a fact in issue.

However Wilson, Dawson and Toohey JJ deal directly with the issue relevant to this appeal.  Their Honours said at 302:

"Whilst it may be well established that statements will found an inference concerning a state of mind, there are relatively few reported cases on the subject and its limits have not been fully explored: see generally Cross on Evidence, 6th ed. (Cross and Tapper, 1985), pp. 465-475.  It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay.  For example, in Hughes v. National Trustees, Executors and Agency Co. of Australasia Ltd. (53) evidence of statements by a testatrix about her sons misconduct was held to be admissible to prove her state of mind when making her will, but not to prove that the misconduct actually occurred because:

"Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix." (per Barwick C.J. (54))"

Such is the case in this appeal.  The fact in issue is the intention of the bankrupts.  The admissions in the criminal proceedings are relevant to prove what motivated them to do what is otherwise proved by the evidence.  That is, why they dealt in property in the way they did.

I should add that Deane J says at 307:

"In particular, I agree that evidence of a relevant out-of-court statement is admissible to prove the maker's knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue..."

In the above extract from their judgment Wilson, Dawson and Toohey JJ referred to Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134. That case concerned the application of the Victorian testators family maintenance legislation, the Administration and Probate Act 1958 (Vic). A testatrix did not provide for her son in her will and he sought an order from the Supreme Court of Victoria that provision be made for him out of his mother's estate. The testatrix had made her will on 14 November 1973. She had, for a period ending in September 1973, lived with her son on a farm owned by her. Evidence was led at the trial of statements made by the testatrix in October 1973, sometime after October 1974 and in February 1975 about the circumstances in which she left the farm which involved the treatment of her by her son and his de facto wife. The evidence concerning the conversation sometime after October 1974 included evidence of a statement by the testatrix of the reason why she did not want her son to benefit from her
estate.  That plainly related to the reason why she had made the will in the terms she did in November 1973.

A question arose as to whether the evidence of the statements of the testatrix could constitute proof of the events preceding and resulting in her leaving the farm.  Gibbs J gave the leading judgment of the majority.  Mason and Aickin JJ agreed with his reasons.  Gibbs J said at 149:

"To enable that question to be considered, it is necessary to decide what effect should be given to the evidence of the statements made by the testatrix as to the conduct of the appellant, and as to the reasons why she deprived him of any benefit under her will.  It is clear that under the rules of the common law a statement by a testatrix that her son has been guilty of misconduct, and that for that reason she has excluded him from any benefit under her will, is not admissible to prove that the son was in fact guilty of misconduct.  What the testatrix said about the son's conduct is hearsay, and no exception to the rule against hearsay which is recognised by the common law allows the statement to be given in evidence to prove the facts stated.  Such a statement is admissible as original evidence to prove the knowledge, motive or other state of mind of the testatrix should that be relevant."

His Honour later said at 152:

"In my opinion consistently with principle it is impossible to treat a statement of this kind as evidence of the truth of the matters said.  Unless the statement is admissible to prove that what was said was true, it cannot shift the onus of proof.  It is admissible only to prove the reasons which actuated the testatrix in making her will."

The High Court was not called upon to consider directly the relevance of the time which elapsed between when the will was made and when two of the testatrix's statements were made months later.  Nonetheless the reasons of Gibbs J provide support for the view that had it been relevant, the evidence of the statements by the testatrix would have provided proof of the reasons why she made the will in the terms she did even
though the statements were made up to fifteen months after the will was made.  Indeed Gibbs J referred with apparent approval to the judgment of Taylor J in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 24 in which Taylor J said:

"The signed statement, itself, is no evidence of the truth of its contents (Re Richard Edward Jones (1); Re G Hall (dec'd) (2); and In the Will of Jolliffe (3)) though statements made by a testator in his lifetime may provide some evidence of the reason why he has disposed of his state in a particular way." (emphasis added)

The principle that a statement by a testator of the reasons why a will was in particular terms is admissible evidence of intention, was not expressed to be dependant on the obvious fact that a testator is not in a position to give evidence of their state of mind.

There is no binding authority to which we were referred which makes plain that statements of the type made by the bankrupts about the purpose of their conduct, should not be treated as primary evidence proving or tending to prove what they intended by that conduct.  There are cogent reasons why they should which, in my opinion, should prevail in proceedings of this type where the bankrupts intentions are a critical issue and they may or may not be parties in the proceedings: see Noakes v J Harvey Holmes & Son (1979) 37 FCR 5, Re Manella; Ex parte Official Trustee in Bankruptcy (1989) 21 FCR 50, Northern Credits Pty Ltd v Peterson (1970) Tas SR 261. The admissions should, in my opinion, be treated as evidence against all parties. They constitute evidence of
what the bankrupts intended when dealing with their income in the way referred to in the admissions including the purchase and improvement of the properties to which these proceedings relate.  The weight to be given to that evidence is another matter.

However, as Wilcox and Cooper JJ discuss, the admissions fall short of establishing the appellant's case and it is thus ultimately not material whether they fail to do so in relation to all or only some of the parties to the proceedings.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:  ........ ........ ......

Dated:    22 May 1996

APPEARANCES

SG 85 of 1994:

Counsel for the Applicant:       D Meagher QC

S Maharaj

Solicitor for the Applicant:     Australian Government Solicitor

Counsel for Guisseppe Alvaro     M L Abbott QC
and Girolama Alvaro:             H Patsouris

Solicitor for Guisseppe Alvaro   
and Girolama Alvaro:             Patsouris & Associates

Counsel for Rita Alvaro          L Powell QC
and Maria Concetta Licari:       V Condello

Solicitor for Rita Alvaro:       W A G Morris
  Pearce & Associates

Solicitor for
Maria Concetta Licari:           Condello & Co

Counsel for Carmine Alvaro:      P N Waye

Solicitor for Carmine Alvaro:        P N Waye & Associates

SG 86 of 1994:

Counsel for Applicant:           D Meagher QC
  S Maharaj

Solicitor for Applicant:             Australian Government Solicitor

Counsel for Paul Alvaro, Rosina   M L Abbott QC
Alvaro, Paul Alvaro Jnr, Elena    H Patsouris
Alvaro & Maria Concetta Licari:

Solicitor for Paul Alvaro, Rosina Patsouris & Associates
Alvaro, Paul Alvaro Jnr, Elena
Alvaro & Maria Concetta Licari:

Counsel for Maria Concetta Licari:    L Powell QC
  V Condello

Solicitor for
Maria Concetta Licari:           Condello & Co

Date of Hearing:                 10 May 1995

Date of Judgment:                22 May 1996