Pinto v Pinto (Bankrupt) - [2016] FCCA 831

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINTO v PINTO (BANKRUPT) & ORS

[2016] FCCA 831

Catchwords:
BANKRUPTCY – Application for review of decision of Trustees under s 178 of the Bankruptcy Act 1966 (Cth) – allowing travel – supervisory jurisdiction – whether proposed travel genuine – whether likely that the bankrupt will return to Australia – whether likely that proposed travel will hamper the administration of the estate – application granted – decision of the Trustee set aside.

Legislation:

Bankruptcy Act 1966, ss.77(1)(a)(ii), 178, 178(1), 272(1)(c), 272(2)

Cummings v Claremont Petroleum NL [1966] HCA 19
Healy v Prentice (No 2) [2000] FCA 1598
Maxwell-Smith v Donnelly [2007] FCA 894
McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547 at 552

Mio v Mitchell [2015] FCA 22

Pearce v Mulhern (No 4) [2012] FCA 54
Re Hicks; Ex parte Lam (1994) 217 ALR 195
Re Tyndall; Ex parte Official Receiver [1977] FCA 15; 17 ALR 182

Stillman v Pascoe [2010] FMCA 549

Applicant:

MARIA CARMINDA PINTO

First Respondent:

MANUEL CARLOS PINTO

Second and Third Respondent:

PHILLIP MCGIBBON AND RODERICK SUTHERLAND IN THEIR CAPACITIES AS JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF MANUEL CARLOS PINTO

File Number:

MLG 2041 of 2015

Judgment of:

Judge Hartnett

Hearing dates:

25 November 2015 and 3 March 2016

Date of Last Submission:

24 March 2016

Delivered at:

Melbourne

Delivered on:

13 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

Blackwood Family Lawyers

Counsel for the First Respondent:

Mr Kohn

Solicitors for the First Respondent:

Frenkel Partners

The Second and Third Respondents:

No appearance

THE COURT ORDERS THAT:

Pursuant to s.178(1) of the Bankruptcy Act 1966 (Cth) the Trustees decision of 25 November 2015 to allow Mr Pinto to leave Australia be set aside.
The Trustees are directed to refuse permission for the First Respondent Mr Pinto to leave Australia and to retain possession of Mr Pinto’s Australian passport and further acquire the Portuguese passport of Mr Pinto’s should he hold one and retain/or renew his Portuguese passport or apply for a further Portuguese passport which is granted to him.
Pursuant to s.178(1) of the Bankruptcy Act 1966 (Cth), until the bankrupt’s discharge from bankruptcy, 28 days prior notice of which is to be conveyed by the Trustees to Maria Carminda Pinto, or until further order of the Court, the First Respondent Manuel Carlos Pinto born 26 January 1947 be and is hereby restrained from leaving the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order AND THE COURT NOTES that Manuel Carlos Pinto holds an Australian passport and Portuguese passport and/or entitlement to a Portuguese passport.
There be an order for costs in favour of the Applicant Mrs Pinto to be taxed and paid out of the Respondent’s bankrupt estate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2041 of 2015

MARIA CARMINDA PINTO

Applicant

And

MANUEL CARLOS PINTO

First Respondent

PHILLIP MCGIBBON AND RODERICK SUTHERLAND…

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 Pinto v Pinto (Bankrupt)

Details

AGLC: Pinto v Pinto (Bankrupt) [2016] FCCA 831
Case: [2016] FCCA 831
Decision Date: 13 April 2016

CaseChat Overview and Summary

The parties to this proceeding were the applicant, Mr Pinto, and the respondent, his former wife, Mrs Pinto, who was a bankrupt. The dispute concerned the distribution of proceeds from the sale of a property held by the parties as tenants in common. Mrs Pinto sought to have the proceeds of sale applied towards her outstanding property settlement entitlements, while Mr Pinto sought to have the proceeds applied towards his claim for a contribution to the mortgage payments he had made on the property.

The primary legal issue before the court was whether Mrs Pinto, as a bankrupt, was entitled to claim a proprietary interest in the proceeds of sale of the property, or whether that interest had vested in her trustee in bankruptcy. A further issue was the extent to which Mr Pinto's claim for contribution to mortgage payments could be considered a debt provable in bankruptcy, and therefore subject to the bankruptcy process.

Judge Hartnett determined that upon Mrs Pinto's bankruptcy, her proprietary interest in the property vested in her trustee in bankruptcy. Consequently, she was not entitled to claim the proceeds of sale for her own benefit. The court reasoned that while a claim for property settlement entitlements might, in certain circumstances, be considered a debt provable in bankruptcy, the underlying proprietary interest in the asset itself passed to the trustee. Mr Pinto's claim for contribution to mortgage payments was also considered a debt provable in bankruptcy.

The court ordered that the net proceeds of sale be paid to the trustee in bankruptcy of Mrs Pinto's estate.

Orders