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 Pearce v Mulhern (No 4) [2012] FCA 54 |
| 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… |
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- AGLC
- Pinto v Pinto (Bankrupt) [2016] FCCA 831
- Case
- [2016] FCCA 831
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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