Official Trustee in Bankruptcy v Timms - [2001] FCA 37

FEDERAL COURT OF AUSTRALIA
Official Trustee in Bankruptcy v Timms [2001] FCA 37
OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE PROPERTY OF ROWAN TIMMS v ROWAN TIMMS & LISA TIMMS
S 7141 OF 1999
MANSFIELD J
9 FEBRUARY 2001
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7141 OF 1999

BETWEEN:

OFFICIAL TRUSTEE IN BANKRUPTCY
AS TRUSTEE OF THE PROPERTY OF
ROWAN TIMMS
APPLICANT

AND:

ROWAN TIMMS
FIRST RESPONDENT

LISA TIMMS
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

9 FEBRUARY 2001

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The Volvo semi trailer registered number SV 73AV and the car carrying trailer registered number TDC-024 were the property of the first respondent, Rowan Timms, at the time of his bankruptcy on 3 June 1992 and vested in the Official Trustee in Bankruptcy as trustee of the property of Rowan Timms on that date.

2.The applicant, Official Trustee in Bankruptcy as trustee of the property of Rowan Timms, is entitled to the proceeds of the sale of the Volvo semi trailer registered number SV 73AV and the car carrying trailer registered number TDC-024 presently held by the Sheriff of the Supreme Court of South Australia.

3.The costs of the applicant, Official Trustee in Bankruptcy as trustee of the property of Rowan Timms, of this application be taxed and paid by the first respondent, Rowan Timms.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7141 OF 1999

BETWEEN:

OFFICIAL TRUSTEE IN BANKRUPTCY
AS TRUSTEE OF THE PROPERTY OF
ROWAN TIMMS
APPLICANT

AND:

ROWAN TIMMS
FIRST RESPONDENT

LISA TIMMS
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE:

9 FEBRUARY 2001

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
BACKGROUND

The first respondent Rowan Timms (“Mr Timms”) was declared bankrupt on 3 June 1992 and was discharged from bankruptcy on 30 July 1995. The applicant is the trustee of his bankrupt estate. Mr Timms submitted that the appointment of the applicant was not proved, but I accept the evidence of Jeremy Gordon Peel (“Mr Peel”) as to that fact.
On 22 July 1992 the applicant took possession of a Volvo semi trailer registered number SV 73AV and a car carrying trailer registered number TDC-024 (“the Volvo and the trailer”) in the belief that they were the property of the respondent. The Volvo and the trailer were stored at the expense of the applicant for some time. The sum of $6,500 held in a bank account in the name of SA Freightlines was also seized.
Promptly upon their seizure, the second respondent Lisa Timms (“Ms Timms”) as trustee for the McEwen Trust (sometimes called the McEwen Family Trust) (“the trust”) on 28 July 1992 claimed that the Volvo and the trailer were the property of the trust, and not the property of the respondent. Extensive communications took place between the applicant and Ms Timms on that matter. Ultimately, on 24 April 1997, solicitors for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Official Trustee in Bankruptcy v Timms and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] FCA 37
Decision Date: 9 FEBRUARY 2001

CaseChat Overview and Summary

The case of Official Trustee in Bankruptcy v Timms involves the Official Trustee in Bankruptcy, acting as trustee of the property of Rowan Timms, and the first respondent, Rowan Timms, who was declared bankrupt on 3 June 1992. The dispute centres on the ownership and disposition of two items of property: a Volvo semi trailer registered number SV 73AV and a car carrying trailer registered number TDC-024. The Official Trustee in Bankruptcy sought to establish that these items were property of the bankrupt estate at the time of his bankruptcy and that the proceeds from their sale should be vested in the trustee.

The court was required to determine several key legal issues. Firstly, whether the Volvo semi trailer and the car carrying trailer were indeed property of Rowan Timms at the time of his bankruptcy. Secondly, if they were, whether the Official Trustee in Bankruptcy was entitled to the proceeds of any sale of these items. Finally, the court had to consider the allocation of costs between the parties.

In its reasoning, the court found that both the Volvo semi trailer and the car carrying trailer were indeed property of Rowan Timms at the time of his bankruptcy. As such, they vested in the Official Trustee in Bankruptcy as trustee of the property of Rowan Timms. The court also determined that the Official Trustee in Bankruptcy was entitled to the proceeds of the sale of these items, which were being held by the Sheriff of the Supreme Court of South Australia. Regarding costs, the court ordered that the costs of the application be borne by Rowan Timms.

Orders

Orders of the court

1. The Volvo semi trailer registered number SV 73AV and the car carrying trailer registered number TDC-024 were the property of the first respondent, Rowan Timms, at the time of his bankruptcy on 3 June 1992 and vested in the Official Trustee in Bankruptcy as trustee of the property of Rowan Timms on that date.

2. The applicant, Official Trustee in Bankruptcy as trustee of the property of Rowan Timms, is entitled to the proceeds of the sale of the Volvo semi trailer registered number SV 73AV and the car carrying trailer registered number TDC-024 presently held by the Sheriff of the Supreme Court of South Australia.

3. The costs of the applicant, Official Trustee in Bankruptcy as trustee of the property of Rowan Timms, of this application be taxed and paid by the first respondent, Rowan Timms.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7141 OF 1999

BETWEEN:	OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE PROPERTY OF ROWAN TIMMS APPLICANT
AND:	ROWAN TIMMS FIRST RESPONDENT LISA TIMMS SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 FEBRUARY 2001
WHERE MADE:	ADELAIDE