Re: THE OFFICIAL TRUSTEE
And: GINO and CHRISTINE GINA MARCHIORI
No. 154 of 1982
Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Fisher J.
CATCHWORDS
Bankruptcy - Avoidance of transactions - disposition fraudulent as against creditors - Proof of intention to defraud - onus of proof - disposition in favour of a child - onus of establishing that child acted in good faith - matter for objective determination.
BANKRUPTCY ACT 1966 ss. 120(1), 121(1)
Noakes v Harvy Holmes & Son (1979) 26 A.L.R. 297
Michael v Thompson (1894) 20 V.L.R. 548
"Cheat's Charter" 91 L.Q.R. 86
HEARING
ADELAIDE
#DATE 11:3:1983
ORDER
1. The disposition of the 1981 Datsun Bluebird sedan in favour of the respondent Christine Gina Marchiori was a disposition made with intent to defraud creditors and was and is void as against the applicant.
2. The respondent Christine Gina Marchiori do within 14 days after service upon her of a sealed copy of this Order transfer the said motor vehicle and the registration thereof to the applicant.
3. The question of costs be reserved.
JUDGE1
This is an application by the Official Trustee in Bankruptcy as trustee of the estate of Gino Marchiori (the bankrupt") for orders setting aside the transfer by the bankrupt of a motor vehicle to his daughter Christine Gina Marchiori ("Christine"). The motor vehicle was a 1981 Datsun Bluebird sedan valued in excess of $5,000 while the bankrupt purported to sell to Christine on 12 February 1982 and the registration of which was subsequently transferred to her name. The Official Trustee ("the applicant") challenged the disposition by the bankrupt of the motor vehicle on two grounds. He contended that it was a disposition of property made by the bankrupt with intent to defraud creditors and in consequence void under s.121 of the Bankruptcy Act 1966 ("the Act"). Alternatively he based his case on s.120(1) of the Act, contending that the disposition was a settlement of property and in consequence void against him in that the settlement took effect within two years before the commencement of the bankruptcy. In his formal documents the applicant stated the date of the disposition as 12 January 1982, although the uncontradicted evidence relates it as 12 February 1982.
Section 120(1) of the Act is in the following terms:
"120(1). A settlement of property, whether made before or after the commencement of this Act, not being
(a) a settlement made before and in consideration of marriage, or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration; or
(b) a settlement made on or for the spouse or children of the settlor of property that has accrued to the settlor after marriage in right of the spouse of the settlor is, if the settlor becomes a bankrupt and the settlement came into operation after, or within 2 years before, the commencement of the bankruptcy, void as against the trustee in the…
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- AGLC
- Re Marchiori, Gino Ex parte The Offical Receiver & Ors [1983] FCA 34
- Case
- [1983] FCA 34
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the disposition of the vehicle constituted a fraudulent transaction against the creditors and, if so, whether the respondent had established that her child, who was the beneficiary of the disposition, acted in good faith. The court needed to decide the burden of proof for the intent to defraud and whether the respondent had successfully demonstrated that the child acted without fraudulent intent.
The court held that the disposition of the vehicle was indeed fraudulent as against the creditors, as the Official Trustee had proven the requisite intent. The court found that the onus of proving the intent to defraud rested with the Official Trustee, and this was successfully discharged. Additionally, the court determined that the onus of establishing the good faith of the child, who was the beneficiary of the disposition, lay with the respondent. However, the respondent failed to meet this burden, leading the court to conclude that the child did not act in good faith. Consequently, the disposition was void as against the creditors, and the vehicle had to be transferred to the Official Trustee.
The orders of the court were that the disposition of the 1981 Datsun Bluebird sedan in favour of Christine Gina Marchiori was fraudulent against the creditors and therefore void. Christine Gina Marchiori was directed to transfer the vehicle and its registration to the Official Trustee within 14 days of receiving the sealed copy of the order. The matter of costs was reserved for further consideration.
Orders
Orders of the court
1. The disposition of the 1981 Datsun Bluebird sedan in favour of the respondent Christine Gina Marchiori was a disposition made with intent to defraud creditors and was and is void as against the applicant.
2. The respondent Christine Gina Marchiori do within 14 days after service upon her of a sealed copy of this Order transfer the said motor vehicle and the registration thereof to the applicant.
3. The question of costs be reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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