Re: BRUCE THOMAS DOYLE (Deceased)
Ex Parte: RICHARD CAMPBELL BRIEN and GRETCHEN DOYLE
No. W 2775 of 1991
FED NO. 102
Number of pages - 36
Bankruptcy - Private International Law - Statutory Interpretation
(1993) 112 ALR 653
(1993) 41 FCR 40
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Burchett J.(1)
CATCHWORDS
Bankruptcy - Private International Law - Effect of sequestration order on property in foreign countries - immovable property in Germany - particular significance, for questions of private international law, of academic opinions in the textbooks - whether s.120 of the Bankruptcy Act affects a "settlement" of land in Germany - whether the Federal Court has jurisdiction - whether relief can be obtained in personam against beneficiary of settlement - whether effect of setting aside a settlement of an undivided share in a joint tenancy might be simply to restore what would have been the position, if there had been no settlement, upon the death of one joint tenant - validity and operation of assignment under lex situs and the importance of the lex situs - effect of wide definition of "property" in s.5 of the Bankruptcy Act - whether s.120 should be construed by applying the definition literally, or whether a "contrary intention appears" - entrenched rule of construction that universal expressions in an Act should be read as confined to what, in accordance with private international law, it is within Australia's province to affect or control - application of that rule to Bankruptcy Act - construction and effect of s.120 - whether the court should try an action involving foreign immovables in a case under s.120 - whether jurisdiction was conferred on, or should be exercised by, the Federal Court in a bankruptcy matter by virtue of the Jurisdiction of Courts (Foreign Lands) Act 1989 of N.S.W. - meaning of "cognizance" in s.30 of Bankruptcy Act.
Statutory Interpretation - entrenched rule of construction that universal expressions in an Act should be read as confined to what, in accordance with private international law, it is within Australia's province to affect or control - application of that rule to Bankruptcy Act - construction and effect of s. 120 of the Bankruptcy Act.
Words and Phrases - meaning of "cognizance".
Bankruptcy Act 1966, ss. 5, 30, 120, 248
Jurisdiction of Courts (Foreign Lands) Act 1989 (NSW)
The Union Bank v Tuttle (1889) 15 VLR 258
The Federal Bank of Australia v White (1895) 21 VLR 451
Banque de Financement, S.A. v The First National Bank of Boston 568 F 2d 911 (1977)
Jabbour v Custodian of Israeli Absentee Property (1954) 1 WLR 137
Bank voor Handel en Scheepvaart N.V. v Slatford (1953) 1 QB 248
Barcelo v Electrolytic Zinc Company of Australasia Limited (1932) 48 CLR 391
Continue reading Re Doyle (dec'd); Ex parte Brien v Doyle
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- AGLC
- Re Doyle, B.T. Ex Parte Brien, R.C. v. Doyle, G. [1993] FCA 102 ((1993) 112 ALR 653; (1993) 41 FCR 40)
- Case
- [1993] FCA 102
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court were whether section 120 of the Bankruptcy Act 1966 (Cth) applied to a settlement of land in Germany, and if the Federal Court had jurisdiction to provide relief in personam against the beneficiary of such a settlement. Furthermore, the court considered whether setting aside a settlement of an undivided share in a joint tenancy would restore the pre-settlement position of the joint tenancy upon the death of one tenant. The court also examined the validity and operation of assignments under the law of the situs and the importance of the situs law, as well as the wide definition of "property" in section 5 of the Bankruptcy Act. The court needed to determine whether section 120 should be construed literally or if a "contrary intention" appeared in the Act, and whether the court should try an action involving foreign immovables in a case under section 120. Additionally, the court considered whether jurisdiction was conferred on or should be exercised by the Federal Court in a bankruptcy matter by virtue of the Jurisdiction of Courts (Foreign Lands) Act 1989 (NSW), and the meaning of "cognizance" in section 30 of the Bankruptcy Act.
The court held that the Bankruptcy Act's universal expressions should be read as confined to what, in accordance with private international law, it is within Australia's province to affect or control. Therefore, the court concluded that section 120 should not be applied to the German property, as it was outside Australia's jurisdiction. Furthermore, the court found that the Federal Court did not have jurisdiction to provide relief in personam against the beneficiary of the settlement, as it was not empowered to try an action involving foreign immovables in a bankruptcy case under section 120. The court also held that the effect of setting aside a settlement of an undivided share in a joint tenancy would not necessarily restore the pre-settlement position, as the law of the situs would determine the validity and operation of the assignment. Finally, the court held that the term "cognizance" in section 30 of the Bankruptcy Act should be interpreted in accordance with the Jurisdiction of Courts (Foreign Lands) Act 1989 (NSW).
The court dismissed the application with costs, indicating that the Federal Court did not have the jurisdiction to grant the relief sought by the applicant.
Orders
Orders of the court
THE COURT ORDERS THAT the application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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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