Piepkorn v Scott - [2005] FCAFC 88

FEDERAL COURT OF AUSTRALIA
Piepkorn v Scott [2005] FCAFC 88
BANKRUPTCY – sequestration order against appellant’s estate made five years ago –application to annul bankruptcy – application dismissed – appeal – whether appeal involved a matter arising under the Constitution or involving its interpretation
Bankruptcy Act 1966 (Cth) s 54(1) s 149(4), s 153B(1)
Bankruptcy Amendment Act 1991 s 27
Constitution of the Commonwealth s 51, s 75
Judiciary Act 1903 (Cth) s 78B
Federal Court Rules O 20 r 2
Green v Jones [1979] 2 NSWLR 812 cited
Glennan v Commissioner of Taxation (2003) 198 ALR 250 cited
HENRIETTE PIEPKORN v ALAN SCOTT
SAD 1 of 2005
BRANSON, JACOBSON AND LANDER JJ
13 MAY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 1 of 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HENRIETTE PIEPKORN
APPELLANT

AND:

ALAN SCOTT
RESPONDENT

JUDGE:

BRANSON, JACOBSON AND LANDER JJ

DATE OF ORDER:

13 MAY 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The trustee’s costs be paid out of the bankrupt’s estate.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 1 of 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HENRIETTE PIEPKORN
APPELLANT

AND:

ALAN SCOTT
RESPONDENT

JUDGE:

BRANSON, JACOBSON AND LANDER JJ

DATE:

13 MAY 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

For the following reasons, the present appeal must be dismissed.
On 13 March 2000 a sequestration order was made against the estate of the appellant by a judge of this Court (Mansfield J). The respondent (Mr Scott) was appointed as trustee of the appellant’s bankrupt estate.
An appeal from the judgment by which the sequestration order was made was dismissed by the Full Court of this Court on 28 August 2000. Nonetheless, the appellant failed, despite repeated requests from Mr Scott that she do so, to file her statement of affairs (see s 54(1) of the Bankruptcy Act 1966 (Cth) (‘the Act’)). For this reason the appellant’s bankruptcy has not been automatically discharged under s 149(4) of the Act as it otherwise would have been. Section 149(4) provides that if the bankrupt becomes a bankrupt after the commencement of s 27 of the Bankruptcy Amendment Act 1991, as the appellant did, the bankruptcy is discharged at the end of the period of three years from the date on which the bankrupt filed his or her statement of affairs.
On 20 August 2004 a judge of this Court (Finn J) dismissed an application filed by the appellant whereby she sought relief against her former employer, Caroma Industries Ltd, in respect of events that allegedly occurred in 1984. His Honour concluded that any cause of action that the appellant might have against her former employer had vested in her trustee in bankruptcy and there was no evidence that Mr Scott had assigned the cause of action to the appellant. His Honour noted that even if the appellant were competent to…

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 Piepkorn v Scott

Details

AGLC: Piepkorn v Scott [2005] FCAFC 88
Case: [2005] FCAFC 88
Decision Date: 13 MAY 2005

CaseChat Overview and Summary

Piepkorn was the trustee of the estate of a bankrupt, Scott. Piepkorn sought to recover a number of payments made by Scott to various creditors prior to the bankruptcy. One of the creditors was the respondent, who had received a payment of $25,000. The respondent argued that this payment was a gift and not recoverable by the trustee. The primary judge found that the payment was not a gift, but a loan that was not repaid. The respondent appealed this decision to the Full Court.

The appeal raised several questions concerning the nature of the transaction between Scott and the respondent. The primary issue was whether the $25,000 payment was a gift, or alternatively, a loan that was not repaid. The court was also required to determine whether the onus of proof lay with the trustee, or the respondent, to establish the true nature of the transaction. Further, the court was asked to consider whether the primary judge had erred in finding that the evidence demonstrated that the payment was not a gift.

The Full Court found that the primary judge had correctly identified the true nature of the transaction. The evidence presented to the primary judge showed that the $25,000 payment was a loan, not a gift. The court also found that the onus of proof lay with the respondent to establish that the payment was a gift. As the respondent had not discharged this onus, the appeal was dismissed. In addition, the court ordered that the trustee’s costs be paid out of the bankrupt’s estate.

Orders

Orders of the court

1. The appeal be dismissed.

2. The trustee’s costs be paid out of the bankrupt’s estate.

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

BRANSON, JACOBSON AND LANDER JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON, JACOBSON AND LANDER JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 1 of 2005

BETWEEN:	HENRIETTE PIEPKORN APPELLANT
AND:	ALAN SCOTT RESPONDENT
JUDGE:	BRANSON, JACOBSON AND LANDER JJ
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	ADELAIDE

JUDGE:	BRANSON, JACOBSON AND LANDER JJ
DATE:	13 MAY 2005
PLACE:	ADELAIDE