Official Trustee in Bankruptcy v Cameron

SUPREME COURT OF QUEENSLAND

CITATION:

Official Trustee in Bankruptcy v Cameron [2008] QSC 89

PARTIES:

OFFICIAL TRUSTEE IN BANKRUPTCY
(applicant)
v
BARBARA ELIZABETH CAMERON
(respondent)

FILE NO:

10626/07

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

14 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2007

JUDGE:

Daubney J

ORDER:

1.   That the application be adjourned to a date to be fixed, pending the hearing and determination of the proceedings commenced by the respondent by claim no. 11160 of 2007;

2.   The costs of and incidental to the application be reserved.

CATCHWORDS:

REAL PROPERTY – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANCY IN COMMON – Incidents – Joint tenancy – severance – In bankruptcy matters – where the respondent and her husband were registered proprietors as joint tenants of a house property – where the interest in the property held by the respondent’s husband was transmitted to the applicant following bankruptcy – where the applicant seeks the appointment of statutory trustees for sale of the property pursuant to s 38 of the Property Law Act 1974 (“PLA”) – where the respondent claims, in separate proceedings, that she is entitled, following payment of the registered mortgage over the property, to the entire equity in the property, or alternatively, to be exonerated in respect of the applicant’s interest in the property – whether a determination under s 38 of the PLA would be inappropriate in the circumstances.

COUNSEL:

FW Redmond for the applicant
AP Collins for the respondent

SOLICITORS:

Piper Alderman for the applicant
HWL Ebsworth Lawyers for the respondent

1. In 1980 the respondent (‘Mrs Cameron’) and her husband purchased, and became registered proprietors as joint tenants of, a house property at Kenmore.  This was, and remains, their family home.  They paid $63,000 for the property, borrowing about half of that from a bank.

1. On 14 August 2003, Mr Cameron became bankrupt on presentation of a debtor’s petition.  He has since been discharged from bankruptcy.

1. On 8 July 2005, Mr Cameron’s interest in the property was transmitted to the Official Trustee in Bankruptcy (‘the Official Trustee’), which became, and remains, registered as a tenant in common in a one half share in the property.

1. The Official Trustee has now, as a co-owner of the property, applied pursuant to

   
   

   s 38 of the Property Law Act 1974, (‘PLA’) for the appointment of statutory trustees for the sale of the property.

1. Mrs Cameron opposes the making of such an order on the grounds that:

(a)She has, by reason of an equity of exoneration, a charge over the entirety of the half share in the property held in her husband’s bankrupt estate;

(b)Further, or alternatively, by reason of the common intention of Mr and Mrs Cameron with respect to the purchase and holding of the property as their family home and contributions made by Mrs Cameron for the upkeep and maintenance of the property, a constructive trust exists by which…