Posner v Gibb - [2001] FMCA 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POSNER v GIBB & ANOR [2001] FMCA 93

BANKRUPTCY – Trustee Application pursuant to s121 of the Bankruptcy Act 1966 (Cth) to declare transfer of land void – Transfer pursuant to s86 Family Law Act 1975 (Cth) agreement.

PRACTICE AND PROCEDURE – Default judgment order 13.3 Federal Magistrates Court Rules – analogous to Order 10 Rule 7 Federal Court Rules.

Chemaisse v Commissioner of Taxation (1990) 13 FLR 724
Ashton v Prentice, unreported decision, 23 October 1997
Official Trustee in Bankruptcy v Alvaro (1996) 138 ALR 341
Australian Securities Commission v MacLeod (1994) 54 FCR 309

Applicant:

MELVYN MALCOLM POSNER

Respondents:

DUNCAN SCOTT GIBB AND REGISTRAR OF TITLES

File No:

WZ53 of 2001

Delivered on:

25 September 2001

Delivered at:

Melbourne

Hearing Date:

25 September 2001

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr D W Thompson

Solicitors for the Applicant:

Phillips Fox

ORDERS

I declare that the transfer of land in favour of the first respondent registered on 7 April 2000 by the Western Australia Department of Land Administration as transfer H413674T the transfer in respect of the land registered as Certificate of Title Volume 1516 Folio 402, (the property) is void as against the applicant in his capacity as trustee in bankruptcy of the bankrupt estate of Lynn Gibb pursuant to s 121 of the Bankruptcy Act 1966.
Pursuant to s200 of the Transfer of Land Act (1893) Western Australia, the second respondent cancelled the registration of:
(a)the transfer, and
(b)the first respondent as registered proprietor of the property in the Western Australian Register of Titles.
The property vests in the applicant in his capacity as trustee in the bankruptcy of the bankrupt estate of Lynn Gibb.
The second respondent register the trustee in bankruptcy of the bankrupt estate of Lynn Gibb as the registered proprietor of the property in the Western Australian Register of Titles.
That the applicant's costs of this application including any reserved costs be taxed pursuant to order 62 of the Federal Court Rules and paid from the estate of Lynn Gibb.
There be no order for costs as against the second respondent.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

WZ53 of 2001

MELVYN MALCOLM POSNER

Applicant

And

DUNCAN SCOTT GIBB and REGISTRAR OF TITLES

Respondents

REASONS FOR JUDGMENT

This is an application by MELVYN MALCOLM POSNER pursuant to s121 of the Bankruptcy Act 1966 (the Bankruptcy Act) seeking orders in relation to a property registered in the Western Australian Registry of Titles as Certificate of Title Volume 1516 Folio 402 (the property) seeking an order that that property be transferred to the applicant in his capacity as trustee in bankruptcy of the bankrupt estate of LYNN GIBB and seeking further orders which I shall refer to later in this judgment. As there was no appearance for DUNCAN SCOTT GIBB the first respondent, the Registrar of Titles the second respondent indicated that it would abide by the decision of the court provided there was no…

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 Posner v Gibb

Details

AGLC: Posner v Gibb [2001] FMCA 93
Case: [2001] FMCA 93
Decision Date: 25 September 2001

CaseChat Overview and Summary

Posner v Gibb was a case before the Federal Court of Australia, involving a dispute over the validity of a land transfer. The applicant, acting as trustee in bankruptcy of the estate of Lynn Gibb, sought to challenge the registration of a land transfer in favour of the first respondent, which had been registered by the Western Australia Department of Land Administration on 7 April 2000. The applicant claimed that this transfer was void as against the bankrupt estate of Lynn Gibb, pursuant to section 121 of the Bankruptcy Act 1966. The second respondent, the Registrar of Titles for Western Australia, was also involved in the proceedings, as the party responsible for the registration of the land transfer.

The primary legal issue before the court was whether the transfer of the property in question was void against the bankrupt estate of Lynn Gibb. This involved an interpretation of section 121 of the Bankruptcy Act 1966, which allows a trustee in bankruptcy to avoid certain transfers made by the bankrupt. Additionally, the court had to consider the effect of the Transfer of Land Act 1893 (WA) and its provisions relating to the registration of land transfers and the consequences of a void transfer.

The court found that the transfer of the property in question was indeed void as against the bankrupt estate of Lynn Gibb, pursuant to section 121 of the Bankruptcy Act 1966. The court ordered the cancellation of the registration of the transfer and the first respondent as the registered proprietor of the property in the Western Australian Register of Titles, pursuant to section 200 of the Transfer of Land Act 1893 (WA). The court further ordered that the property vest in the applicant as trustee in bankruptcy of the estate of Lynn Gibb, and that the second respondent register the trustee in bankruptcy as the registered proprietor of the property. The court also ordered that the applicant's costs of the application be paid from the estate of Lynn Gibb, and that there be no order for costs against the second respondent.

Orders

Orders of the court

I declare that the transfer of land in favour of the first respondent registered on 7 April 2000 by the Western Australia Department of Land Administration as transfer H413674T the transfer in respect of the land registered as Certificate of Title Volume 1516 Folio 402, (the property) is void as against the applicant in his capacity as trustee in bankruptcy of the bankrupt estate of Lynn Gibb pursuant to s 121 of the Bankruptcy Act 1966.

Pursuant to s200 of the Transfer of Land Act (1893) Western Australia, the second respondent cancelled the registration of:

(a) the transfer, and

(b) the first respondent as registered proprietor of the property in the Western Australian Register of Titles.

The property vests in the applicant in his capacity as trustee in the bankruptcy of the bankrupt estate of Lynn Gibb.

The second respondent register the trustee in bankruptcy of the bankrupt estate of Lynn Gibb as the registered proprietor of the property in the Western Australian Register of Titles.

That the applicant's costs of this application including any reserved costs be taxed pursuant to order 62 of the Federal Court Rules and paid from the estate of Lynn Gibb.

There be no order for costs as against the second respondent.

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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