Pascoe v Park - [2009] FMCA 1244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v PARK & ORS

[2009] FMCA 1244

BANKRUPTCY – Property vested in trustee – balance in bankrupt’s business bank account – whether after‑acquired property was income – whether whole of account was property divisible among creditors – whether other account holder had legal or equitable interest – trustee’s application for declarations not opposed – Bank ordered to pay balance to trustee.

Bankruptcy Act 1966 (Cth), ss.5, 58, 58(1), 116, 139L
Federal Magistrates Court Rules 2001 (Cth), r.16.05(2)(a)

In the Matter of the Bankrupt Estate of John Lawrence Sharpe; Re John Lawrence Sharpe; Ex Parte: Max Christopher Donnelly [1998] FCA 6
Lockwood v Vince (2007) 166 FCR 305
Rodway v White [2009] WASC 201

Applicant:

SCOTT DARREN PASCOE

First Respondent:

SO YOUNG PARK

Second Respondent:

KYOUNGA KIM

Third Respondent:

YONG SEON EAU

Fourth Respondent:

WESTPAC BANKING CORPORATION

File Number:

SYG2722 of 2009

Judgment of:

Smith FM

Hearing date:

3 December 2009

Delivered at:

Sydney

Delivered on:

3 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms S Nash

Solicitors for the Applicant:

Sally Nash & Co

Counsel for the First to Third Respondents:

No appearance by or on behalf of the First to Third Respondents

Solicitors for the Fourth Respondent:

No appearance by or on behalf of the Fourth Respondent

ORDERS

All money now credited to the account held by the Westpac Banking Corporation at its Lane Cove Branch and numbered 732‑085/2085 53‑5701 in the name of the first and third respondents is property which has vested in the applicant as trustee of the bankrupt estate of Yong Seon Eau pursuant to s.58(1) of the Bankruptcy Act 1966 (Cth).
The fourth respondent must pay the outstanding balance of that account to the applicant.
All parties have liberty to apply to vacate or vary these orders by filing an interim application supported by affidavits.
The applicant must within 2 working days serve a copy of this order by registered post to the last known address of each of the respondents.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2722 of 2009

SCOTT DARREN PASCOE

Applicant

And

SO YOUNG PARK

First Respondent

KYOUNGA KIM

Second Respondent

YONG SEON EAU

Third Respondent

WESTPAC BANKING CORPORATION

Fourth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Mr Pascoe is the trustee of the bankrupt estate of Yong Seon Eau (“Mr Eau”), pursuant to a sequestration order made on 18 March 2009. Mr Pascoe applies for orders which would confirm that there has vested in the bankrupt estate the current balance in a bank account at the Westpac Lane Cove branch in the name of the bankrupt and another person, So Young Park. It is possible that this person is the spouse of Mr Eau, and she certainly lives at the same residence. She is named as the first respondent, and Mr Eau is the third respondent. Also living at their residence is the second respondent, named as Kyounga Kim. The evidence as to the identity of this person is obscure, as is 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.

Continue reading Pascoe v Park

Details

AGLC: Pascoe v Park [2009] FMCA 1244
Case: [2009] FMCA 1244
Decision Date: 3 December 2009

CaseChat Overview and Summary

Pascoe, as trustee of the bankrupt estate of Yong Seon Eau, brought an application against Park and others, seeking a declaration that certain funds held in a bank account were property that had vested in the estate. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the funds held in the specified Westpac bank account were property of the bankrupt estate. A secondary issue was whether the fourth respondent, who held the account, was required to pay the balance of those funds to Pascoe.

The court examined the provisions of the Bankruptcy Act 1966 (Cth), particularly section 58(1), which outlines the circumstances under which property vests in the trustee of a bankrupt estate. The court found that the funds in question had indeed vested in Pascoe as trustee of the estate, as they were held in a bank account in the name of Park, who was a debtor of the bankrupt. Furthermore, the court held that the fourth respondent, being the account holder, was liable to pay the balance of the account to Pascoe. The court's reasoning was grounded in statutory interpretation and the application of the Bankruptcy Act to the facts of the case.

The court ordered that all money currently credited to the specified Westpac bank account be deemed property that had vested in Pascoe as trustee of the bankrupt estate. The fourth respondent was directed to pay the outstanding balance of that account to Pascoe. The court granted liberty to all parties to apply to vacate or vary these orders by filing an interim application supported by affidavits. Pascoe was required to serve a copy of this order by registered post to the last known address of each of the respondents within two working days.

Orders

Orders of the court

All money now credited to the account held by the Westpac Banking Corporation at its Lane Cove Branch and numbered 732‑085/2085 53‑5701 in the name of the first and third respondents is property which has vested in the applicant as trustee of the bankrupt estate of Yong Seon Eau pursuant to s.58(1) of the Bankruptcy Act 1966 (Cth).

The fourth respondent must pay the outstanding balance of that account to the applicant.

All parties have liberty to apply to vacate or vary these orders by filing an interim application supported by affidavits.

The applicant must within 2 working days serve a copy of this order by registered post to the last known address of each of the respondents.

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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